Susan Duncan's blog
Join the Women & Global Issues Committee
of the U of L Commission on the Status of Women for a
Fall 2009 Film Series
Chao Auditorium (Ekstrom Library)
Rape in the Congo
Presented by Dr. Jennie E. Burnet
Department of AnthropologyMONDAY, SEPTEMBER 28TH AT 4:00 P.M.
Since 1998, a brutal war has been raging in the Democratic Republic of Congo (DRC). Over 4 million people have died, and many tens of thousands of women and girls have been systematically kidnapped, raped, mutilated and tortured by soldiers from both foreign militias and the Congolese army. A survivor of gang rape herself, Emmy Award-winning filmmaker Lisa F. Jackson has created an extraordinary film in which these brave women finally speak.
Keep Not Silent
Presented by Dr. Ed Segal, Professor Emeritus
Department of Anthropology
TUESDAY, OCTOBER 6TH AT 4:00 P.M.
The struggles of three Israeli lesbians attempting to live within the contest of Orthodox Judaism are examined. All are religiously committed women and members of a secret support group called the "Ortho-Dykes."
Presented by Dr. Beth Willey
Department of English
TUESDAY, OCTOBER 27TH AT 2:30 P.M.
In a small village, four young girls facing ritual ‘purification’ flee to the household of Collé Ardo Gallo Sy, a strong-willed woman who has managed to shield her own teenage daughter from mutilation. Collé invokes the time-honored custom of moolaadé (sanctuary) to protect the fugitive. The final film from African cinema’s founding father, Ousmane Sembene.
For more information, contact Dr. Dawn Heinecken at firstname.lastname@example.org or call 852-8160
All films are free and open to the public.
SAVE THE DATE
On Wednesday, March 25th, Jeff Been and Kathy Bean will be discussing Kathy's experience as our second Legal Aid Brandeis Fellow. We hope many of you will plan to attend to hear about Kathy's excellent time at Legal Aid and to learn how YOU can be the next fellow. We will even have pizza (supplied by Kathy, Jeff and me). Please rsvp to me so we know how much food to order. Looking forward to seeing you there! Jeff Been told me this is now a model program nationwide. I have attached his memo describing the program.
Thesis paragraphs are important because readers of legal analysis want to know what the writer's conclusion is at the outset, so that they can test it as they read. They also want to be prepared for the scope and direction of the analysis. They do not want suspense or mystery. Thesis paragraphs also provide an anchor for the reader. Any reader can get lost or confused when reading lengthy or complex legal analysis. Reviewing the thesis paragraph can frequently get the reader back on track.
When writing your thesis paragraph ask yourself the following questions:
- Have you summarized the rule, setting out all the subparts and clarifying how they relate to each other?
- Have you included any important information about how the rule functions generally, such as a burden of proof or a relevant presumption?
- Have you identified any genuinely undisputed issues and provided a cursory explanation for why they are not in dispute?
- Have you briefly applied the rule to your facts?
- Have you stated a legal conclusion?
For more on this topic please see a short article I wrote for the KBA Bench and Bar which can be accessed at:
The Statement of Facts needs to be accurate, objective, and complete. To test whether your facts are accurate and objective ask yourself whether the other side should accept these facts as true. If so, you probably did a good job of keeping the facts neutral. Remember to just report the facts in this section and avoid telling readers what these facts mean. Argument does not belong in the Statement of Facts.
To determine if you have all the necessary facts highlight all the facts you use in the discussion session. These same facts need to be part of the Statement of Facts. You may add some additional facts not contained in the discussion section to provide your reader background and context. Keep these to a minimum always asking yourself if the reader really needs a certain fact to follow the story or apply the law. If not, delete those unnessary facts which will help keep your writing concise.
- Have you included all legally significant facts?
- Have you included sufficient facts to put legally facts in context?
- Have you included any major emotional facts?
- Have you avoided including discussion of legal authority?
- Have you avoided arguing the facts or drawing legal conclusions?
- Have you pointed out any important unknown information?
- Have you identified the client and the client's situation at the beginning of the Fact Statement?
- Have you selected an appropriate organization (chronological, topical, combination) for the facts?
- Does your last paragraph give the facts closure and lead into the Discussion section by explaining the procedural posture of the legal issue or by some other device?
- Have you maintained neutral language and objective characterizations?
- Have you included both favorable and unfavorable facts?
While writing the short answer keep these questions in front of you:
- Have you stated the answer in the first several words?
- Have you included a statement of the rule?
- Have you stated a summary of the reasoning leading to the answer?
- Have you chosen generic references to match the Question presented?
- Have you tried to keep the brief answer to a maximum of a double spaced page?
- Have you taken a position, even if you are not sure?
- Have you avoided sending your reader mixed signals about how sure you are of the answer?
Many student writers fail to briefly apply facts to support the thesis. For example:
Smith will be successful in his claim for false-light invasion-of-privacy. Under Arkansas common law, a plaintiff can recover damages for false-light invasion-of-privacy when he can prove "1) that damage was sustained; (2) the publicity given places the plaintiff in false light; (3) the false light the plaintiff is placed in would be highly offensive to a reasonable person; (4) the defendant had knowledge of or acted with reckless disregard as to the falsity of the publicized matter; (5) the defendant had serious doubts as to the truth of the matter publicized; and (6) the damages were proximately caused by the defendant's giving of such publicity." Wal-Mart v. Lee, 74 S.W.3d 634 (Ark. 2002). In cases of false-light invasion-of-privacy, the burden of proof is governed by the clear and convincing evidence standard. Dodrill v. Ark.Democract Co., 590 S.W.2d 840, 845 (Ark. 1979).
The reader does a nice job setting out the law but does not apply any facts from the case to support the thesis that the plaintiff will be successful with his cause of action.
Other students include many facts but never apply them to the law forcing the reader to connect the dots. For example:
Yes, our client has a claim for false light invasion of privacy. To satisfy the four disputed requirements of this claim, the teacher must prove that the newspaper publisher gave publicity to highly offensive, false statements about the teacher, and that the publisher either knew the statements were false, or acted in reckless disregard regarding the falsity of the statements. The newspaper labeled our client as having been arrested in a cocaine raid. Our client has no prior record of drug-related offenses, and was arrested for possession of marijuana, not for cocaine distribution. The statements were made in a local newspaper, and as a result, our client has been subject to harassment and anger from fellow members of the community. The publisher doubted the accuracy of its article and did not verify the statements were true, yet had access to the official police report which stated that the teacher was arrested for marijuana possession.
The writer provides some great, relevant facts but never ties these facts to the elements.
This next writer does a much better job of including and applying facts to the law.
No. In order to bring a false light invasion of privacy claim under Arkansas state law persons must prove: 1) they were placed in a false light, 2) the light in which they were placed would be highly offensive to a reasonable person, 3) the publication constitutes publicity, 4) the author acted with actual malice, 5) they suffered damages, and 6) the damages were proximately caused by the giving of said publicity. Wal-Mart Stores, Inc. v. Lee, 74 S.W.3d 634, 656 (Ark. 2002). In the case at hand, the newspaper article portraying a teacher arrested for marijuana possession as a cocaine dealer places him in a false light, is highly offensive, and is publicity. However, obtaining a name from an arrest list does not constitute actual malice by the reporter.
As I start to grade first year closed memos, I thought a refresher checklist might be valuable to readers of this blog. I no longer remember who first provided me with this checklist but it serves the purpose well. Keeping these questions handy while writing the various sections of the memo will help improve the memo's overall quality. Today I review what makes an effective question presented.
- Have you made an appropriate choice of format?
- If you chose the "under/does/when" format did you state the rule, then the legal question and then the significant facts?
- Have you deleted any proper names?
- Is the sentence readable?
- Have you maintained an objective perspective?
Often a tension exists between making the sentence readable and including significant facts. Writers will either include too few facts making the question vague and unhelpful or go overboard by including all the facts resulting in a mammoth sentence. Finding the balance between the two takes practice and lots of editing.
Example of too few facts:
Under Arkansas common law, can a newspaper be held liable for false light invasion of privacy when an article is published where doubt remains about certain facts?
A reader unfamiliar with the case would have difficulty trying to paint the picture using this question presented. A better question presented might be:
Under Arkansas common law, is a newspaper liable for false light invasion of privacy when it publishes an article about cocaine traffickers and includes the name and photograph of a teacher arrested only for marijuana possession?
This question presented provides a much more vivid picture about the issue involved in the case. It includes the law (Arkansas common law, the legal question (false light invasion of privacy) and some key relevant facts.
Another common problem with questions occurs when the writer makes conclusions within the question. The following two examples make a conclusion regarding the malice element.
Under Arkansas common law, is a newspaper liable for false light invasion of privacy when it publishes the name of an individual it knows was arrested for misdemeanor of marijuana possession in an article about the unrelated felony arrests of suspected traffickers?
Under Arkansas law, does a teacher have a claim for false light invasion of privacy when a newspaper article regarding a cocaine trafficking bust implies the teacher's involvement when a reporter could or should have known the teacher was actually arrested for marijuana possession?
Concluding that the reporter knows or could have or should have known decides the issue of malice. Instead of conclusions the reader should include facts that may ultimately prove or disprove the malice element.
During the last few weeks I posted information on how to write an effective abstract. Critiquing a real abstract will help illustrate the various suggestions in prior posts. My colleague, Judy Fischer, drafted an abstract for her recent article that could be a text book model for effective abstract writing. The abstract piques my interest and tells me what is covered in the article including her thesis.
Judy Fischer's Abstract:
Through empirical research, this article examines whether judges on the United States courts of appeals are framing their opinions in gender-neutral language. Drawing on multidisciplinary sources, including the work of language scholars, psychologists, framing theorists, and legal professionals, the article explains why gender-neutral language is important and discusses ways of constructing it. The article then presents the results of a study of recent court opinions, compares data from the years 1965 and 2006, and discusses implications of the data. It concludes that courts have made significant progress toward gender neutrality, but it also identifies a need for further improvement, which can be accomplished through shifting both mental and verbal frames toward greater inclusiveness.
- Does the abstract include all the necessary information? Yes the reader can identify:
- Objective: To determine if courts frame opinions in gender neutral language
- Methods: Empirical research using a study of recent court opinions
- Results Courts have made significant progress toward gender neutrality
- Conclusions/Recommendations: Further improvement is needed and can be accomplished through shifting both mental and verbal frames.
- Does the abstract tell me how it fits into existing literature? Yes it explains that she will draw from multidisciplinary sources, including the work of language scholars, psychologists, framing theorists and legal professionals.
- Is the abstract written clearly and concisely? Yes. The abstract contains no throat clearing words, clutter, "there is" constructions or the passive voice. Professor Fischer uses strong verbs almost exclusively (avoiding the "verb to be") to make her points (examines, explains, presents, discusses, concludes, identifies). The abstract contains slightly over 100 words making the point that useful, interesting abstracts can be accomplished with brevity. The only suggestion I have is to add a sentence which explains why gender-neutral language is important instead of merely foreshadowing this with the abstract. I think specifically including this information in the abstract will help show readers why they should care about the issue and want to download her article.
Now that you have a draft of your abstract you are ready for the polishing phase. Edward T. Cremmins in his book, The Art of Abstracting 68-69, offers these three rules to assist in the editing process.
Rule 1. Is the abstract properly structured and unified?
Rule 2. Is the content of the abstract complete, coherent, and concise?
Rule 3. Does the abstract conform to both general style rules and conventions for abstracts and those special ones contained in the publisher's or information-system manager's instructions on the type and length of abstracts?
Writers need to make sure they have conformed to any requirements for the abstracts including word count, font, margin size, etc. Usually in law no specific instructions about abstracts are given allowing the writer relative freedom. If no length is designated, the writer should typically keep the abstract between 250-400 words.
The writer also needs to carefully proof the document for style and substance errors. The writer should double-check that information has been included for all the essential parts of the abstract as discussed in early posts. Once the writer is confident about the abstract's substance, he or she needs to line edit the abstract looking for typos and grammatical and punctuation errors. Reading the abstract out loud or reading it backwards may help the writer spot the errors more easily. The writer should be particularly mindful about word choice that maximizes conciseness and avoids redundancy. Deleting colloquialisms, superlatives and other adjectives helps keep the writing concise.
Additional ways to achieve brevity include:
1. Deleting throat clearing phrases such as:
(These were taken from Bryan A. Garner, The Red Book A Manual on Legal Style 159-60 (West 2002)).
Instead of this:
As a consequence of
As previously stated
At the time when
At this point in time
Because of the fact that
Despite the fact that
Due to the fact that
For the reason that
In accordance with
Under; according to
In light of the fact that
In reference to
In the event of (that)
In the instant case
Is required to
Is binding on
It is probable that
On behalf of
Under; according to
With reference to (regard to)(respect to)
With the exception of
2. Deleting passive voice.
3. Avoiding quotations.
4. Not stating the obvious.
5. Cleaning out the clutter. In Anne Enquist's and Laurel Currie Oates's book, Just Writing 131, they provide the following example.
Clutter: At this point in time, we are in the process of filing a motion for summary judgment with the court.
Without the clutter: We are filing a motion for summary judgment.
6. Looking for the word "of" which often can be eliminated. Example: The Radley's dog not the dog of the Radleys.
7. Combining sentences especially if the first sentence merely treads water and forces the reader to go to the second sentence to get the important information.
8. Avoiding "it is," "there is," "there were" constructions.
The writer should read the abstract several times focusing on just one of these suggestions while reading. For example, after the writer identifies and reworks all passive voice constructions, the writer can move to finding and eliminating all throat clearing words.
We have exciting news regarding health insurance coverage for children in Kentucky! Governor Beshear announced a plan to enroll over 35,000 eligible children in KCHIP (and Medicaid) by 2010. This plan involves many improvements to the current enrollment and re-enrollment system, such as elimination of the face-to-face requirement for enrollment in KCHIP and increased outreach to eligible families. (A press release describing components of the plan is attached.) CLOUT, along with several other advocacy organizations, has been working diligently to bring about this much needed change in our children's health insurance system. While the focus of the Governor's plan is going to be on a statewide effort, CLOUT will remain involved in this process and continue to advocate for the goal set at our Nehemiah Assembly--6,000 more children receiving KCHIP/Medicaid within three years. We believe that the Governor's plan is a big step toward achieving this goal, but we also realize that we must continue to be one of the voices advocating for children in Jefferson County. Thank you for your support of this important work.