Ariana R. Levinson's blog
As summer ends and we look toward rainy days of indoor activities, consider renting a movie about labor. Tom Zaniello's "Working Stiffs, Union Maids, Reds, and Riffraff: An Organized Guide to Films About Labor" describes a broad selection of movies. There are the old standards, like Norma Rae, which I watched with my labor law class a couple of weeks ago. But there are also less well-known Hollywood films and countless documentaries. The movies span the range of perspectives on organized labor. The movies also include many that are not about organized labor at all but instead focus on topics such as the depression, farmworkers, slavery, or women in the workforce.
I'm certainly making a list of those I would like to watch. Let me know your favorites!
If you are interested in learning about using narrative techniques to enhance your brief writing, Kenneth D. Chestek's article The Plot Thickens: The Appellate Brief as Story, 14 Leg. Writing 127 (2008) is a good starting point.
If, like me, you were not an English major and have not thought about writing a fiction story since high school, you are likely using some of these techniques already without realizing it. It's nice to have a reminder, or perhaps learn for the first time, about terms that describe these techniques. The article explains the following techniques: setting, conflict, character, point of view/voice, theme, and plot. The latter includes the introduction, the complicating incident, the climax, the resolution, and the denouement. The article provides an illustration of using the techniques by describing the writing of a fictional brief.
While the article posits that much legal writing may be dry because law students learn to write using an IRAC paradigm, I believe that the paradigm is not to blame. I believe that most legal writing professors are teaching their students to use IRAC for small-scale organization and are additionally teaching about large scale organization, including the importance of theme and storytelling. Many of us may not, however, have the literary background to name the techniques. This article will enable us to do so.
Stetson University College of Law's Project on Excellence in Legal Communication and Scribes: The American Society of Legal Writers are pleased to announce the availability of a new webinar, Ethics and Professionalism in Legal Writing: Brief Writing and Writing for Litigation, available on Scribes' website, www.scribes.org.
In this webinar, two seasoned appellate lawyers and a legal writing professor discuss issues related to creating a positive ethical and professional reputation for brief writing. Their discussion covers topics including challenging opposing arguments and criticizing court opinions, using (or not using) footnotes, borrowing from another's work, dealing with adverse and unpublished authorities, handling mistakes of fact and law, and addressing page limits and motions for rehearing. The webinar provides a conversational format, accompanied by PowerPoint, for introducing students to some important issues of legal writing professionalism and ethics. One hour of Florida CLE ethics credit is approved for the webinar.
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.
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.