University of Louisville Law Faculty 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.
The "Law and Order" and "CSI" of the 18th and 19th century were the half-penny broadsides which broadcasted the lurid details of sensational crimes, trials and hangings. The Harvard Law Library has announced the launch of a new digital collection "highlighting its extensive holdings of crime broadsides." It can be viewed at http://broadsides.law.harvard.edu.
From Harvard: "Just as programs are sold at sporting events today, broadsides--styled at the time as "Last Dying Speeches" or "Bloody Murders"--were sold to the udiences that gathered to witness public executions in eighteenth- and ineteenth-century Britain. The Library's collection of more than 500 of hese broadsides is one of the largest recorded and, to our knowledge, the first to be digitized in its entirety. The examples digitized span the ears 1707 to 1891 and include accounts of executions for such crimes as rson, assault, counterfeiting, horse theft, murder, rape, robbery, and reason. Many of the broadsides vividly describe the results of sentences anded down at London's central criminal court, the Old Bailey, the proceedings of which are now available online at http://www.oldbaileyonline.org."
A new blog launches to provide readers with resources on land use and the environment. "Mapping the Landscape" will feature abstracts of and links to recent publications that address the intersection of land use and environmental issues. Each blog entry will begin with a short explanatory statement about the importance or usefulness of the featured resource, followed by an abstract and a link to the publication. The blog will appear weekly (or more frequently at times) and will initially feature articles freely downloadable from the Social Science Research Network. Many of the posting will relate to themes of environmental responsibility in land use. Watch for the posting on the first resource in the next few days.
Boehl Chair in Property and Land Use
Professor of Law & Affiliated Professor of Urban Planning
Chair of the Center for Land Use and Environmental Responsibility
University of Louisville
I enjoyed this post on our very active Blackboard discussion group. I think it is worth sharing (with Kevin's permission) because it shows a core law course shedding light on an extra-legal pleasure:
Property, Lawyering Skills and Emily D Author: Kevin Monsour
Has anyone else noticed that things read differently after a semester of Property (not to mention after 1.5 years of law school). I stumbled across this this morning. It's Emily Dickinson talking about a garden being overtaken by winter. For context: her father was an attorney, they lost their farm when she was a child, and "Shaw" was Chief Justice of state SC. (yes, I googled it). Shaw was also, apparantly, a laborer who worked on the family land. So beyond the metaphor for Emily's struggle with nature over her garden, is an actual property dispute. (So in essence, to deconstruct it, it is sort of an un-metaphor)
Anyway, a little light property poetry:
I had some things that I called mine –
And God, that he called his,
Till, recently a rival Claim
Disturbed these amities.
The property, my garden,
Which having sown with care,
He claims the pretty acre,
And sends a Bailiff there.
The station of the parties
But Justice is sublimer
Than arms, or pedigree.
I’ll institute an “Action” –
I’ll vindicate the law –
Jove! Choose your counsel –
I retain “Shaw”!
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.
When I think of the ability to inspire, my thoughts focus on Louisville's great basketball coach, Rick Pitino. I have heard it said that Pitino can beat you with his players, then trade players with you, and beat you with your own players. Of course, part of what makes a coach like Pitino great is his ability to teach technique and his ability to strategize. Although Pitino is a great strategist (as was Louisville's prior coach, Denny Crum), equally important to Pitino's success is his ability to inspire his players. More than once when a Pitino coached team was trailing in a game, he inspired his team to victory (e.g., note Louisville's win over then # 6 Georgetown last week, and (going father back) Kentucky's astounding 31 point comeback a few years ago).
Some deans also have the gift of inspiration. Oh sure, some deans are simply place-holders who accomplish nothing, aspire to nothing, and do not inspire their colleagues. They simply want to be called "dean." Even worse, some deans have a negative impact on morale and tend to demoralize their colleagues (who, by the way, they would not regard as "colleagues"). These deans have a negative impact on their colleagues, as well as their institutions. When they leave, the faculty fully understands how the French felt when the allies liberated Paris from the Nazis. A chosen few deans are Pitinoesque in their ability to inspire their colleagues (and these deans really do regard their faculty as "colleagues"), and encourage their faculty and their schools to greater heights. In a subsequent entry I will talk about what it takes to "inspire."
"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)