Ariana R. Levinson's blog

Legal Writing Tip - Read Just a Little Bit

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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 ElgartenMiguel 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.

Legal Writing Tip - Breaking Writing into Stages

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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.

The Importance of a Long Term Strategy

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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 (5th 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. 

 

Using Technology to Teach Legal Writing

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If you are teaching legal writing to your interns or associates, you may be interested in some of the tips I share with my legal writing colleagues in a forthcoming piece, A Potpourri of Technology, in The Second Draft.

Here's the abstract.

Looking for movies or video clips to use in your legal writing class? Thinking about blogging? Simply want an interesting document to use on the document projector? This draft of a piece forthcoming in The Second Draft provides quick tips about easy ways that one professor has successfully used technology to enhance her students' learning. Like the forthcoming piece, this draft provides footnotes about where to locate materials. But it also provides additional footnotes recommending scholarship on wikis and podcasts.

Warns Conference - Hold the Date

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Please hold the dates June 18 & 19, 2009 for the 26th annual Warns Conference.  I will post more details as they become available.  But if you are interested in labor and employment issues or need CLE credit, this is a great conference to attend.

Advancing Technology and Santa

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Last night my husband and I helped our sons write a letter to Santa.  The four year old queried, "I can't remember, did we write a note to Santa last year or did we e-mail him?"  My husband replied, "I think Santa prefers a letter; he's a little old-fashioned!"

Creative Labor Lawyering

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Chapter Three of Labor Law Stories, Kenneth G. Dau-Schmidt's The Story of NLRB v. Truitt Manufacturing Co. and NLRB v. Insurance Agents' International Union:  The Duty to Bargain in Good Faith addresses the tension in the rules that define when a party bargains in good faith.  On the one hand, cases like Truitt set per se rules that dictate certain conduct, the violation of which amounts to bad faith bargaining.  On the other, cases like Insurance Agents' indicate a "hands off approach" whereby parties are free to conduct themselves as they see fit unless the totality of the circumstances indicates bad faith conduct.

Despite the focus on the theory underpinning the duty to bargain in good faith, the chapter also offers several practical lessons for lawyers.  One is about the value of "creative lawyering," and the distinction between creativity and misrepresentation.

To understand the lesson, some brief background about Truitt is necessary.  Truitt is the case that establishes that if an employer claims a financial inability to pay wages, it must supply documentary proof of the inability to the union.  To do otherwise is inconsistent with the duty to bargain in good faith.

Dau-Schmidt tells the story of the negotiations.  Before the negotiations, the National Labor Relations Board (Board) had decided that when an employer pleads poverty, it must disclose financial information to the union.  Both parties' negotiators, including Truitt Manufacturing Company's attorney, Dick Douglas, were aware that the Board was looking for a case "to test" the doctrine in front of the Supreme Court.  Mr. Douglas "cautioned the company bargaining committee to let him talk and not to plead poverty."  Nevertheless, the company President responded to the Union's "repeated demands for a ten cent an hour wage increase."  He "rose to his feet" and asserted "if we give you that raise, we will go broke!" 

During the litigation, Mr. Douglas explained the outburst as resulting from low insulin.  But the President's son, a co-owner of the company, later recalled to Dau-Schmidt that his father's outburst "was precipitated by the union representatives' dogged commitment to their bargaining position.  The explanation that his father was short on insulin was merely creative lawyering on the part of Mr. Douglas."

Is "creative lawyering" an appropriate response to a client's failure to heed legal advice?

We do not know from the story whether the father was diabetic or whether Mr. Douglas had proof of low insulin.  We can assume those facts because, otherwise, the explanation would be fabrication rather than "creative lawyering."  (And fabrication is certainly not an appropriate response.)

Even so, I believe that one of the most difficult lessons of early practice is learning which creative arguments to make.  Some creative arguments are consistent with the facts but will, nevertheless, backfire because the language the witnesses use to describe the facts or the witnesses' understanding of the facts, no matter how faulty, will undermine the argument when the witnesses testify.

As for the Truitt case, we are left to wonder whether mentioning the low insulin was helpful.  It was not a determinative fact underlying any of the legal arguments advanced by Mr. Douglass that are discussed in the chapter or in the Supreme Court's opinion.  If used as a sympathetic fact, it ultimately had little impact.  For all we know, its mention backfired because the witness himself and his son did not truly believe that insulin had anything to do with their case.

Congratulations to the Arbitration Competition Team

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I would like to congratulate the arbitration competition team on their great performance at the ABA arbitration competition this past weekend.  It was the first time each member of the team had competed, yet they managed to secure an arbitrator judge's vote in each of the two rounds.  Their evaluation forms include many positive comments.  Here are some highlights.  Lily Chan and Josh Speirs prepared a "well organized" opening statement and summation.  They made "good use of evidence" and gave a "well done professional and ethical presentation."  Mike McIntire's direct examination included "good chronological organization of questions and proof," and on cross he did well by showing "possible bias."  His partner, Colleen Goodman, gave a "superior" opening with "great organization" and a "good timeline" that was "great on remedies."  All participants were repeatedly congratulated on how well-prepared their witnesses were.  I have every expectation that next year Lily and Josh will make use of their experience to advance the team to the semi-finals.

The Importance of Marshaling Facts - Take Two

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Chapter Seven of Labor Law Stories, Alan Hyde's The Story of First National Maintenance Corp. v. NLRB:  Eliminating Bargaining for Low-Wage Service Workers is another testimonial to the importance of marshaling the facts of the case.

First National Maintenance Corp. is one of the seminal cases that attempts to delineate which topics are subjects of mandatory bargaining under the National Labor Relations Act ("NLRA").  More specifically, the case establishes that an employer who shuts down "part of its business purely for economic reasons" need not bargain over that decision.

The Supreme Court described the case as involving a maintenance contractor that decided to stop working at a certain site after the employees voted in the union.  It did so purely because of a lack of profit and not because of labor cost.  And it fostered no anti-union animus.

Chapter Seven tells a different story about First National Maintenance Corporation ("FNM"). 

District 1199 was the union voted in at the site at issue, a nursing home called Greenpark.  FNM vigorously resisted District 1199's attempts to organize FNM's employees at another nursing home, Haven Manor.  At Haven Manor, FNM recognized a sweetheart union instead of recognizing District 1199.  Even after the employees voted to deauthorize the sweetheart union's security arrangement, FNM extended the collective bargaining agreement.  FNM was ultimately found to have violated Section 8(a)(2) which prohibits employer domination and support of unions.

Indeed, at Greenpark as well, FNM wanted nothing to do with 1199.  FNM's attorney later compared permitting employees from Greenpark, who supported District 1199, to transfer to other locations to "letting a virus loose in the company.  We didn't want militant people to infect other locations."

Additionally, the decision to cancel the Greenpark contract had much to do with labor costs.  Under Greenpark's contract with FNM, Greenpark paid labor costs plus a $250.00 management fee.  The Greenpark administrator refused to pay any more even if the District 1199 won the election, which would decrease the management fee because a portion of it would need to be spent on labor costs. 

This story, however, was never told in the courts.  Why not?

At the unfair labor practice trial, the General Counsel "did nothing to challenge" the company witness's testimony that FNM was losing money and "could not persuade Greenpark to raise" its fee so "exercised its right not to renew the contract."  The General Counsel did not call the administrator at Greenpark "who might have explained then, as he did in 2004, that FNM's purported reliance on the level of the management fee was more realistically a concern about demands for increased wages from the newly recognized union." 

And, the General Counsel did not seek to prove anti-union animus "[d]espite the fact that the . . . union shop deauthorization" and 8(a)(2) case at New Haven "were being handled contemporaneously in the same board office."

 

 

Work, Family and Community: Shared Responsibilities Conference

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The Kentucky Psychological Association presents, "Work, Family and Community: Shared Responsibilities Conference."  A conference of national experts will offer 21st century solutions for families, businesses, and communities to work together to navigate the changing social, economic, health, and political realities of work and family.

Dean Chen will introduce the Keynote Address Speaker, Joan C. Williams, Founding Director for Worklife Law and Distinguished Professor at Hastings College of Law, University of California.

Click here for more information on when and where the conference will be held and how you can attend.   (A limited number of tickets are available to law students free of charge by contacting Virginia Smith.)