the (new) legal writer

Is your map too big?

Prof. Peter Friedman of Case Law School draws an interesting analogy, which I'd like to share with you, between an over-inclusive piece of writing and a fictional gargantuan map imagined by Jorge Luis Borges. He quotes Borges:

In that Empire, the Art of Cartography attained such Perfection that the map of a single Province occupied the entirety of a City, and the map of the Empire, the entirety of a Province. In time, those Unconscionable Maps no longer satisfied, and the Cartographers Guilds struck a Map of the Empire whose size was that of the Empire, and which coincided point for point with it. The following Generations, who were not so fond of the Study of Cartography as their Forebears had been, saw that that vast Map was Useless, and not without some Pitilessness was it, that they delivered it up to the Inclemencies of Sun and Winters. In the Deserts of the West, still today, there are Tattered Ruins of that Map, inhabited by Animals and Beggars; in all the Land there is no other Relic of the Disciplines of Geography.

Jorge Luis Borges, On Exactitude in Science (translated by Andrew Hurley). Prof. Friedman comments, "Such a map is, of course, a duplicate of that territory, and thus useless as a map, much as an over-inclusive account of facts and law render a memo useless to its reader."

It shouldn't be surprising that lawyers and other writers make this mistake. After all, we received most of our writing lessons in school, and school at every level rewarded us for writing everything we knew about the topic. In the real world, we need to unlearn that lesson. Out here, it's not about showing what you know; it's about giving the readers what they need.

Certworthy: Summer 2006 issue

The calendar says we're four days into autumn; what better time to bring out the Summer 2006 issue of Certworthy?

Certworthy is the newsletter of the DRI Appellate Advocacy Committee; I have the privilege of being its editor. The contents of the current issue include the following:

• A Primer on Motions for Summary Affirmance in the Federal Courts of Appeals, by Ralph W. Johnson, III.
• The Ten Commandments Cases and the Establishment Clause: Is "Location, Location, Location" the New Three Part Test?, by Matthew R. Scott and Joseph L. Parks.
• The Anatomy of an Effective Reply Brief, by Steffen N. Johnson.
• The Dynamics of Appellate Oral Argument, by Justice Margaret M. Grignon (Ret.) and Zareh Jaltorossian.
• Browsing the Bookshelf by Beth Ermatinger Hanan, reviewing Sandra Day O'Connor: How the First Woman on the Supreme Court Became Its Most Influential Member, by Joan M. Biskupic.
• Circuit reports from almost all federal circuits, by our fearless band of regional editors.
• The Hit Programs Keep Coming, a column by R. Daniel Lindahl touting the doings of our wonderful committee.

To download the entire issue, click here. Then print and, if you want, save a copy to your hard drive. For links to back issues, click here.

Young Lawyer's Guide to Defense Practice

DRI has announced publication of The Young Lawyer's Guide to Defense Practice. Here is DRI's blurb about the book:

For years DRI has wanted to produce a comprehensive publication, targeted towards young lawyers, that offers practical guidance and insight on a variety of legal topics.  Now a group of members on the Young Lawyers Committee has done just that!  Authors of The Young Lawyers Guide to Defense Practice dedicated hundreds of hours towards the compilation of 27 chapters that address important considerations such as: law firm life, ethics and conflicts, defending a claim, expert witnesses, discovery, evidence at trial, and various litigation topics including motion practice, voir dire, opening statements and closing arguments, arguing motions and appeals, and writing an appellate brief.

That last chapter (about how to write an appellate brief) is by yours truly. (Hint about the content of my chapter: 90% to 95% of the work occurs before you actually start writing.)

To download a copy of the book's table of contents, click here (for Word) or here (for PDF). To purchase, visit the DRI Bookstore.

Street legal

Which lyricist is most often cited in law-review articles and judicial opinions? No surprise: it's Bob Dylan. That's just one of the observations made by Alex B. Long in his article, [Insert Song Lyrics Here]: The Uses and Misuses of Popular Music Lyrics in Legal Writing. To see his Top 10 list, click here.

His article is about more than just who's the most cited lyricist. Here's the abstract:

Legal writers frequently utilize the lyrics of popular music artists to help advance a particular theme or argument in legal writing. And if the music we listen to says something about us as individuals, then the music we, the legal profession as a whole, write about may something about who we are as a profession. A study of citations to popular artists in law journals reveals that, not surprisingly, Bob Dylan is the most popular artist in legal scholarship. The list of names of the other artists rounding out the Top Ten essentially reads like a Who’s Who of baby boomer favorites. Often, attorneys use the lyrics of popular music in fairly predictable ways in their writing, sometimes with adverse impact on the persuasiveness of the argument they are advancing. However, if one digs deeper, one can find numerous instances in which legal writers incorporate the lyrics of popular music into their writing in more creative ways.

(Hat tips to TaxProf Blog and A List of Things Thrown 5 Minutes Ago.)

__________

p.s. (9/21/06): If you'd like to spice up your own legal writing with Bob Dylan lyrics, then bookmark the lyrics search page on BobDylan.com.

Bad writing

The faculties of the Due Process Clause may be indefinite and vague, but the mode of their ascertainment is not self-willed. In each case "due process of law" requires an evaluation based on a disinterested inquiry pursued in the spirit of science, on a balanced order of facts exactly and fairly stated, on the detached consideration of conflicting claims, on a judgment not ad hoc and episodic but duly mindful of reconciling the needs both of continuity and of change in a progressive society.

Rochin v. California, 342 U.S. 165, 172 (1952) (Frankfurter, J.). If your reaction to this passage is, "Huh?", then you'll enjoy Bad Writing: Some Thoughts on the Abuse of Scholarly Rhetoric, by Jethro K. Lieberman. Don't get discouraged by the density of the first page; stay with it into Part II.

For more fun with postmodern gibberish, check out the Postmodernism Generator.

For law students: How to read

If you're a law student interested in making good grades, read on. In Legal Reading and Success in Law School: An Empirical Study, Prof. Leah Christensen describes a study showing a correlation between how students read legal texts and the students' grades. Here's the abstract:

Does the way in which law students read legal text impact their success? This article describes important new research on how law students read legal text. This study examined the way in which first year law students in the top and bottom 50% of their class read a judicial opinion and whether their use of particular reading strategies impacts their law school grades. The results were significant: even when students had gone through the same first-semester classes, the more successful law students read a judicial opinion differently than those students who were less successful. In addition, there is a correlation between the reading strategies of the top law students and their first-semester grades. This article describes the results of the study using both empirical data and actual student transcripts to show how the most successful law students read legal text. This article also offers practical suggestions for legal educators to help students learn to internalize the most useful and efficient reading strategies.

Does this mean you can improve your grades by changing your reading strategy? Prof. Christensen suggests so in her conclusion:

Minimally, the results of this study support that legal reading is very important to a law student’s career. Law schools need to invest time and energy into teaching this skill. Although it is often tempting to assume that students come to us either intellectually equipped or unequipped to study the law, this is an oversimplification. We can teach students how to read and analyze the law more efficiently and effectively. The challenge is to guide our students by teaching them the strategies used by their successful peers. In the end, we will produce not only better law students, but better lawyers as well.

The art and science of persuasion

Here's a question for trial and appellate lawyers out there: What formal education have you received in the art and science of persuasion? For example, are you trained in classic rhetoric (Aristotle, Quintilian, et al.)? Or in the social sciences and what they teach about how people are persuaded?

If you're in the business of persuading others, you need to know these things; otherwise, you literally don't know what you're doing.

For an introduction to the science of persuasion applied to legal writing, read The Science of Persuasion by Prof. Kathryn Stanchi. Prof. Stanchi holds that "the study of the science of persuasion by persuasive legal writers is long overdue, and that lawyers have an obligation to test and re-examine the traditions and conventions of persuasive legal writing using data and theories from other disciplines." In her article, she analyzes two concepts of persuasive theory: sequential request strategies (a technique for constructing argument chains) and audience involvement (techniques for making the audience care — or not care — about the outcome of a case).¹

For an introduction to classical rhetoric, read The Art of Rhetoric by Aristotle — as good today as it was 2,300 years ago.

__________

¹ Hat tip to Legal Writing Prof Blog.

How many typos does it take to sink your chance of landing that job?

Just one or two, according to this survey conducted by Office Team:

Executives were asked, "How many typos in a resume does it take for you to decide not to consider a job candidate for a position with your company?" Their responses:

One typo: 47%
Two typos: 37%
Three typos: 7%
Four or more typos: 6%
Don't know/no answer:        3%

Diane Domeyer of Office Team advises job seekers to subject their résumés to a computer spell-check, manual proofreading, and proofreading by a friend or family member. "A fresh pair of eyes can help candidates spot mistakes overlooked by the spell-checking function."