second draft - Legal Writing Institute

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The Second Draft: Bulletin of the Legal Writing Institute
Non Profit Org.
U.S. Postage
PAID
Boston, MA
Permit No. 54162
LEGAL
WRITING
INSTITUTE
THE
SECOND DRAFT
Bulletin of the Legal Writing Institute
Volume 20, No. 1
On May 11, 2005, Adam Milani, a
member of Mercer Law School’s legal
writing faculty, died from complications following surgery in an Atlanta
hospital. Adam was a model of competence, compassion, and courage,
and the impact of his life is profound.
Despite complete paralysis in his
lower body and limited use of his
arms and hands, Adam successfully
championed two causes during his
much-too-brief life: equality for disabled people and the importance of
effective legal writing in the practice
of law. The legal writing profession–
and the world at large–has suffered a
tremendous loss with Adam’s passing.
Adam never used his disability as
an excuse. He never had to. Adam’s
many accomplishments serve as a tes-
In This Issue
In This
Issue
The
President
s Column ................
LWI Committee Reports ............ 4AThe
Legal
Writing Column
Lesson from
President’s
. . . . . . . . . . .3
Brown v. Board of Education ......
Special
Feature: Using Macros to
From the Desk of the Writing
Comment on Student Writing ..
Specialist: Creating a
The Next Step Clinic Collaborations
Rock-Solid
and
CreatingFoundation
the Law ........... 0
. . . .Teachers:
. . . . . . . . . . . . . . . .8
for IRAC
[Not Just]
For Newer
Bringing Upper-Level Course
Experiences
the Legal
The Next
Step: Sointo
It’s Like
We’re
Writing
Course
.....................
Really Lawyers . . . . . . . . . . . . .14
From the Desk of the Writing
Specialist Advantages of a
Our Full-Time
Best Classes:
Writing Specialist ...
Articles
. . of
. . .the
. . .2004
. . . . . . . . . . . . . . .4-25
ighlights
ALW
News
. . . . . LWI
. . . . . Survey
. . . . . . .............
. . . . . . . .4.26
News
...........................................
Calendar . . . . . . . . . . . . . . . . . . . . . . .31
2004 LWI Conference ighlights 2
Calendar ...................................... 2
Save the dates for the
2006 LWI Conference:
June 7-10, 2006, in
Atlanta, GA. We hope
to see you there!
24
THE SECOND DRAFT
August 2005
A Tribute
tament to his talent and his courage.
The Scholar. Adam was a prolific
legal scholar. He wrote or co-wrote
numerous books and law review articles in the areas of disability discrimination and legal writing. Many of
Adam’s scholarly works have been
cited by state and federal courts,
including the United States Supreme
Court. In 2003, Adam was honored
for his legal scholarship by being
elected to the prestigious American
Law Institute.
The Teacher. Adam was also a
talented teacher. Students often commented that they learned more than
doctrine when they took a class with
Adam; they also learned by example
what it means to be dedicated and
professional. Adam was one of those
rare law teachers who inspired his
students to be better lawyers and better people. In 2001, the graduating
students in Mercer’s legal writing certificate program honored Adam for
his exceptional teaching by presenting
him with the first Honorary
Certificate in Legal Writing.
The Warrior. Adam was also a
fierce warrior. Not satisfied to simply
let his scholarship expose the
inequities of disability discrimination,
Adam took a more active role in fighting for the rights of the disabled.
Adam regularly gave speeches on
disability discrimination to both legal
and non-legal audiences. He also
served as a consultant to disability
attorneys around the country and
even co-wrote an amicus brief in the
Supreme Court case of The PGA Tour
v. Casey Martin. Adam volunteered
his expertise in disability law by serving on the boards of several local serv-
ice organizations. In 2004, Adam was
honored by his undergraduate alma
mater, the University of Notre Dame,
for his outstanding public service.
As if that were not enough, Adam
also fought valiantly to improve the
status of legal writing in the legal
academy. Even before Mercer converted its legal writing positions to
tenure-track positions, Adam demonstrated through action that legal
writing professionals can effectively
perform the tasks traditionally
required of tenure-track faculty: producing quality scholarship, being an
effective teacher, and providing service to the law school and the community. Adam’s dedication and hard
work contributed in no small measure
to the conversion, and in 2002, Adam
received tenure at Mercer under the
new system he helped create.
The Friend. Adam was also one of
the most generous and friendly people you will ever meet. He freely
shared pedagogical advice and materials with his Mercer colleagues as
well as with other legal writing professionals around the country. Adam
was well known for his warm and
gracious attitude toward everyone he
encountered.
Because of Adam’s many accomplishments, and because Adam rarely
complained about his disability, many
people who worked closely with
Adam would say that they often lost
sight of his disability. Such a view of
Adam is both a tribute and a disservice. Adam worked hard to put those
around him at ease and to demonstrate his tremendous capabilities. To
lose sight of his disability, however, is
to loose sight of how truly remarkable
CONTINUED ON PAGE 7
The theme for this issue, “My Best Class,” set me to
reflecting on my own best class. Since becoming a teacher, I
have secretly dreamed of having one of those Dead Poets
Society moments, where students stand on their laptops, triumphantly calling “Oh Captain, my Captain!” as their faces
gleam with understanding of CREAC, synthesis, how to use
“id.” properly, or some other great truth to which I have led
them. Alas, I am not Robin Williams, and such a dramatic
moment has not happened to me yet, or so I believed.
In reading the outstanding submissions for this issue,
however, I realized that all of us are having those “Oh
Captain” moments, albeit in a more subtle way. The following articles consistently show that such a seemingly elusive
moment is occurring daily in legal writing classes across the
country. It happens when students understand how to construct persuasive facts after hearing the story of the three little pigs, when an old song and the air banjo effectively illustrate a legal rule, when students realize that law school is
about the limes, or even when a new explanation we give
makes one tiny light bulb flicker over a single student’s head.
Through your novel ideas and creative insights, your students are “getting it”—they are achieving that higher level of
understanding.
We received a record number of submissions on this
theme of “My Best Class,” and we wish that all of them could
have been printed. We hope the following articles challenge
and inspire you to try new things or revisit your class with a
fresh eye. More than that, we hope this issue will help you
to realize your own “Oh Captain” moments, which are happening more often than you may think.
Continuing in this vein of thought, our next issue, “How
to Communicate Difficult Concepts,” will explore ways in
which you teach the most difficult legal concepts to your students. Do you have particularly effective ways to teach
IRAC, research, citation, synthesis, case selection, or any
other challenging writing or analytical concepts? What class
format has worked best in your experience: lecture, workshops, small group sessions, or one-on-one conferences?
How do you deal with students who just cannot seem to get
the basic principles of legal analysis, research, or writing?
We are looking forward to hearing your ideas.
With this issue, we welcome Kathleen Vinson and Lisa
Healy from Suffolk University Law School as new editors
of The Second Draft. We are excited about their extensive
experience in the field of legal writing and the enthusiasm
they have already brought to our publication. As announced
in the last issue, Barbara Busharis has retired as editor of The
Second Draft. We would like to thank Barbara for her years of
hard work and service to this publication. We hope you
enjoy this issue.
Sandy Patrick (Lewis & Clark)
Lisa Healy (Suffolk)
Joan Malmud (Oregon)
Kathleen Vinson (Suffolk)
2
The Second Draft
Deadline for submissions for the next issue is September 15, 2005
The theme is “Communicating Difficult Concepts”
THE LEGAL WRITING INSTITUTE
The LegalWriting Institute is a non-profit corporation founded in 1984.
The purpose of the Institute is to promote the exchange of information
and ideas about legal writing and to provide a forum for research and
scholarship about legal writing and legal analysis.
Legal Writing: The Journal of the Legal Writing Institute
Status of Volume 10: Publication in Summer 2005
Status of Volume 11 (Conference Proceedings): Fall 2005
Status of Volume 12 (Ethics and Professionalism): Currently accepting submissions, deadline is October 1, 2005
For information, contact Mary Beth Beazley, Editor-in-Chief, [email protected]
Executive Committee
President
Terry Jean Seligmann (University of Arkansas School of Law–
Fayetteville), [email protected]
President-Elect
Susan Hanley Kosse (University of Louisville–Louis D. Brandeis
School of Law), [email protected]
Immediate Past President
Steven J. Johansen (Lewis and Clark Law School)
[email protected]
2006 LWI Conference
Secretary
Ruth Anne Robbins (Rutgers School of Law–Camden),
[email protected]
Treasurer
Carol McCrehan Parker (University of Tennessee College of
Law–Knoxville), [email protected]
Executive Committee Member
James B. Levy (Nova Southeastern University),
[email protected]
Directors
Dan Barnett (Boston College Law School),
[email protected]
Linda H. Edwards (Mercer University School of Law),
[email protected]
Anne Enquist (Seattle University School of Law),
[email protected]
Elizabeth Fajans (Brooklyn Law School),
[email protected]
Kristin Gerdy (Brigham Young University School of Law),
[email protected]
Sue Liemer (Southern Illinois University School of Law),
[email protected]
Tracy McGaugh (South Texas College of Law),
[email protected]
Judy Rosenbaum (Northwestern University School of Law),
[email protected]
Kathleen Vinson (Suffolk University Law School),
[email protected]
CALENDAR
From the Editors
June 7-10, 2006, Atlanta, GA
Regional Conferences
Central States Regional Legal Writing Conference, The Indiana University School of
Law, September 23-24, 2005
New England Consortium of Legal Writing Teachers, Boston University School of Law,
December 9, 2005.
LWI Board Meeting
AALS Meeting: Wednesday, January 4, 2006, 4 pm
Golden Pen/Blackwell Reception
Friday, January 6, 2006, 7-9pm
Board of Directors Elections
Call for Nominations: February 15, 2006
Elections:
March 2006 (ballots distributed)
April 2006 (ballots returned)
Thanks to Litho-Craft and Mike Hudak for assistance
with publishing Volume 20, and to Barbara Busharis
for her continued support and invaluable advice.
The Editors
The Second Draft is published twice yearly and is a forum for
sharing ideas and news among members of the Institute. For
information about contributing to The Second Draft, please
visit the Institute’s website at www.lwionline.org.
THE
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THE SECOND DRAFT
SEC
31
The President’s Column
Guidelines for Contributors
We welcome unsolicited contributions to The Second Draft. Our goals include providing a forum
for sharing ideas and providing information that will be helpful to both experienced and novice
instructors.
Content of submissions. Each newsletter will have a “theme,” which will be announced
in the preceding issue. Submissions should be consistent with the announced theme. At the top
of each submission, please include:
• a title for your article
• your name
• the school with which you are affiliated, and
• your email address.
The ideal length for a submission is approximately 650 words. We encourage authors to review
recent issues of The Second Draft to determine whether potential submissions are consistent with
the type of contribution expected, and with the format and style used. Copies of The Second Draft
and information on deadlines for submissions are available at www.lwionline.org.
Form of submissions. Submissions should be made in Microsoft Word. Please include
your name and the school with which you are affiliated, and a suggested title for your article
within the Word document. Please send your submission electronically by attaching it to an
email, which should be sent to Kathleen Vinson ([email protected]) or Lisa Healy
([email protected]).
Review and publication. Submissions are reviewed by the editors. One of the editors
will notify the author of the article’s acceptance, rejection, or a conditional acceptance pending
revision. Please note that if your article is accepted for publication, your name, school and email
address will be published so that others may contact you for further information about your article. Finally, after an article is accepted, it may be further edited for length, clarity, or consistency
of style.
LWI Website Resources
The LWI website, www.lwionline.org, provides numerous informational
resources for members. You can search the LWI membership directory,
locate a committee chair, or search Second Draft archives. You can use the
Idea Bank, download a copy of the LWI plagiarism brochure, or review
detailed information from the ALWD/LWI Survey.
Gerdy of BYU made all arrangements seamless and freed
the Board to focus on LWI. Thirteen of your fifteen Board
members, plus the LWI Journal Editor-in-Chief, were able
to clear their calendars during this busy time of year to
brainstorm and plan for LWI’s future. With the able help
of Professor Terrill Pollman of UNLV as facilitator, we
identified a set of priorities: development of scholarship;
outreach to practitioners and others; assessing and improving the survey of legal writing programs; providing useful
website content to members; involving more and new
members in leadership positions; developing better mechanisms for member input; supporting experienced teachers;
Terry Jean Seligmann, mobilizing responses to adverse program changes; and
claiming our place as an empowered and positive voice for
University of
Arkansas-Fayetteville legal writing professionals. For each of these priorities, we
outlined the procedural steps to be taken to move forward,
designated Board volunteers to help carry out the process,
Dear Members,
and generated specific activities to pursue within each category. I was struck by the intelligence, creativity, and dediLegal writing is in full bloom, with many interesting
cation to legal writing demonstrated by every Board memconferences that testify to the healthy growth of our disciber.
pline. Plans for the June 2006 Conference in Atlanta are
We are indeed a fortunate community. We all have
well under way with Conference Co-Chairs Tracy
passionate views about the issues that face us, but the posiMcGaugh and Cliff Zimmerman and Site Committee Chair tive energy generated during our meetings was palpable.
Linda Edwards. In addition, Diane Edelman and Steve
I am excited to be a part of LWI as we work on these projJohansen worked for months to put together Preparing for
ects, and I hope that many of you will become involved as
Practice: A Conference on Legal Skills Training in Central and
they develop.
Eastern Europe at the Central European & Eurasian Law
Initiative (CEELI) Institute in Prague, Czech Republic.
Held on May 17-20, 2005, LWI and ALWD were the origiSincerely,
nal joint sponsors of this conference, but it drew sponsorTerry Jean Seligmann
ship from The American Society of International Law, The
European Law Faculties Association, The National Center
for State Courts, and the United States Department of
State, Regional Language Office, along with CEELI. Just
In my remarks at the 2004 Conference, as printed in the
working with all of these organizations would be success
last Second Draft, I failed to mention that the Legal Writing
enough, but the program, at which several LWI members
Institute began at the University of Puget Sound in 1984. It
presented, drew at least fifty registrants from thirteen
continued there until 1994 when Seattle University took
countries. Congratulations to Diane and Steve on this
over sponsorship of the law school. The law school then
global effort.
became Seattle University School of Law.
The most exhilirating experience of the spring for me
was participating in the LWI Board’s planning retreat, held
May 3-5, 2005, in Midway, Utah. Board member Kristin
u
u
u
If you have ideas for “themes” that would be of special interest, or have any
comments about the content of this or other issues of The Second Draft,
please contact the editors.
Deadline for submitting material for the next issue of The Second Draft: September 15, 2005.
30
THE SECOND DRAFT
THE SECOND DRAFT
3
Linda S. Anderson, Franklin Pierce law
Center
For a few moments I am almost invisible–a fly on the wall. In front of me,
students in my Legal Skills class are
arranged in small groups, engaged in
lively debate about the cases they are
trying to understand for use in their
appellate brief. In short, they are
behaving as lawyers.
When students start to engage in
discussions about the case law with
each other, rather than with me, I am
having my “best class.” More importantly, what makes this my “best
class” is that my students are engaging
with each other as they might do in
practice. They are treating each other
respectfully, listening, contemplating,
and adding to the discussion.
As students begin to analyze the
cases related to their appellate advocacy problem, they are still learning to
read and analyze cases. As we begin
the semester they realize they must do
more than just read and highlight
these cases. However, they are not
always aware of what, exactly, they
should add to their process.
To move students toward true
analysis, I assign two specific cases
related to their issue and ask them to
consider several focused questions.
Though the questions are based on the
cases, they are targeted toward case
analysis in
general. To
encourage
understanding
of procedural
history and the
difference
between the
appellate
court’s explanations of the
prior decision’s
reasoning and
the appellate court’s own reasoning, I
specifically ask about the reasons for
the lower court’s decision. This
requires them to identify the different
courts involved and how the case has
moved from one court to the next.
Students must also determine whether
the appellate court agreed with the
lower court, and why it did or did not
do so. In addition, I specifically
choose at least one case with a dissenting or concurring opinion and ask students to identify the differences of
opinion expressed by members of the
same court.
After reading both cases and
answering questions about each, I then
ask some questions about the way the
cases do and do not fit together.
Finally, I ask students to apply the reasoning of each case to the current set
of facts they are addressing. For those
who read and analyze cases regularly,
these questions seem too obvious, and
much like a Socratic dialogue. But for
first-year students the questions are
not automatic; rather, they are preparation for a class discussion–not the
discussion itself. Students address
these questions prior to arriving at
class, knowing that they will be part of
the classroom discussion. They come
prepared to dig deeper into the cases
and spend much of the class in small
groups doing just that.
After reading and analyzing the
cases on their own, students discuss
the same questions in small groups.
Each member of the group is on the
same side of the issue. They must discuss the cases and reach consensus
about the appropriate responses.
Surprisingly (to them), they often have
different answers to almost all questions. By justifying their responses
they must delve more deeply into
When students start to engage in
discussions about the case law with
each other, rather than with me, I am
having my “best class.”
4
the cases, which they might not do
otherwise.
Why is this my “best class”? My
students are teaching each other. They
are engaged in the discussions we are
trying to encourage them to have.
They are engaged with the law. They
are engaged with each other. Their
analysis skills are being honed. Their
oral presentation skills are being exercised. Their listening skills are being
utilized. They are emerging from their
cocoon and trying their wings.
To reach this point–the “best
class”–requires many classes that
introduce and reinforce these behaviors. It requires a semester where students are encouraged to read cases
closely, describe what they are reading
in the cases, and discuss the law
respectfully. It requires many classes
where we agree that there are different
interpretations and not one that is perfect. It requires other classes where
we work on supporting a position.
Most of all, it requires a never-wavering attitude that expresses confidence
in the students’ ability to engage in
these discussions. This fosters their
confidence in articulating a position,
knowing that it may not be perfect,
and their willingness to listen to others
and potentially change their position
or argument as a result. u
The S.M.A.S.H.Work-Out
Circuit: Tightening Flabby
Sentences
Naomi Harlin Goodno,
Pepperdine University School of Law
Losing weight. Every week it seems
there is a new way to fight the battle
of the bulge, and the most recent kick
is to lower the carbs–the inconspicuous, quiet potato and bagel of the ‘90s
are the newest enemies. Of course,
there are as many new diets as there
are approaches to exercise. All we
need is a fresh approach and a new
name and we are ready for the same
old battle. It may be that we need to
take this same approach with teaching
writing – present basic grammar and
writing concepts in a new package.
In two classes my students received
a crash course in sentence structure,
and we all had fun doing it.
My motivation was a hard-core
gym class that required working-out
in a circuit at different weightlifting
stations. I thought it would be fun
and challenging to the students to use
a similar method–a circuit of “exercising” sentences at different stations to
THE
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LWI BOARD RETREAT
The Metamorphosis
THE SECOND DRAFT
Elizabeth Fajans (left),
Mary Beth Beazley (center),
and James Levy (right)
brainstorming.
Terrill Pollman (center) facilitating a discussion.
SEC
Susan Kosse, President-Elect
29
News
Wake Forest University’s law faculty approved
long-term contracts for the legal research and writing professors along with full voting rights on
matters not involving tenure.
Continued from page 27
The faculty at Widener University School of Law,
Harrisburg, approved a proposal to add a third
required semester to the Legal Methods curriculum, effective with next fall’s incoming class. The
program will now have a three-semester, sevencredit program.
Conferences
On Friday, December 9, 2005, Boston University
School of Law will host the biannual meeting of
The New England Consortium of Legal Writing
Teachers. The meeting will explore the first-year
Legal Research and Writing curriculum, examining
and assessing goals and deciding how to achieve
them, particularly within different teaching models. Proposals for panels and presentations should
be submitted to Professor Robert Volk at Boston
University School of Law, [email protected], by
October 31, 2005. Submissions should indicate
how long the presentation will be, whether media
support will be needed, and if a panel discussion
will be proposed, how many presenters will be on
the panel. Legal Writing professionals from across
the nation are welcome to participate. For more
information visit the web site at
http://www2.bc.edu/~gionfrid/new/NELWCpag
e.htm.
The Indiana University School of Law at
Indianapolis will host the Central States Regional
Legal Writing Conference on September 23-24,
2005. The conference theme is “What’s Old is New
Again: Legal Writing–A Discipline Coming of
Age.” The focus will be on rejuvenating your
classroom with new ideas and putting a new twist
on old favorites. The conference will begin with a
reception on Friday, September 23, from 5:30-7:00
p.m. in the atrium of the law school. Tracy
McGaugh, Assistant Professor of Law at South
Texas School of Law will kick off Saturday morning with a discussion of the millennial generation
and how best to tool our teaching to reach them.
The remainder of the day will feature presentations on a wide variety of practical topics relating
to curriculum, pedagogy, and research by legal
writing professionals. The presentations should
take a practical, “hands on” approach to the topic.
28
You may submit a proposal for a 15-minute speed
round, a 25-minute presentation, or a 45-minute
panel presentation. For more information, e-mail
Debby McGregor at [email protected].
The Journal of the Association of Legal Writing
Directors invites submission of articles for its Fall
2006 Rhetoric & Argumentation issue. In this
“best practices” issue, the Journal will publish articles relating classical and contemporary rhetorical
theory to the practice of professional legal writing.
The final deadline for submission of articles is
September 15, 2005. Article selection will be completed by November 1, 2005. The Journal welcomes submissions from legal writing professionals, including law professors, lawyers, and judges,
as well as from academics, researchers, and specialists from other disciplines. In addition to fulllength articles, the Journal welcomes essays and
practice notes. The complete Call for Articles is
available at www.alwd.org or by contacting Linda
L. Berger, Chair, Editorial Committee, Thomas
Jefferson School of Law, [email protected], 619-3746933.
Northwestern University School of Law presented
a conference on Teaching Contract Drafting in July.
The conference was designed to help professors
develop curricula to teach contract drafting skills.
The conference was organized by Susan J. Irion
and Judith A Rosenbaum (Northwestern),
Richard K. Neumann, Jr. (Hofstra), and Tina L.
Stark (Fordham).
tight.
make
thetopics
sentences
strong and
a list of
that mentors
would
be
The
circuit
name:
S.M.A.S.H.
The
willing to address with new members.
goal: to smash sentences into shape. I
The committee came up with a
introduced the S.M.A.S.H. work-out
preliminary list of topics for mentors,
circuit with the following slide that
solicited
experienced
defined the
acronym:mentors to
address those
topics,Sentence
and prepared a list
The Tight
for new members,
which
S*M*A*S*Hwas available
initially
at
the
2004 LWI
Conference
Surplus words,
get rid
of them
andMind
thereafter
will be included in the
the gap
Voice
NewActive
Member
Orientation packets that
ShorttoSentences
are sent
each new member.
Hereinafter
Simplify
the Words
Reading List
for New
Members
I then
explained
that
S.M.A.S.H.
After discussion, the committee
should
decidedhelp
that identify
the best weak
way tosentences
approach
and target flabby grammatical errors.
putting together a reading list was to
Each letter in S.M.A.S.H. is like a difsolicit suggestions from the listserv.
ferent weightlifting station that exerInitially,
we had
some
that we
cises
different
parts
ofconcern
a sentence.
might
end
up
with
a
list
that
was
Here is an explanation of each oftoo
the
long.work-out
However,stations
that hason
turned
five
the out not
to be the case.
As with
thewhich
mentor
list,
S.M.A.S.H.
circuit,
all of
were
the reading
was available
initially at
inspired
by list
Richard
C. Wydick’s
Plain English
invaluable
book
the 2004 LWI
Conference
andfor
will be
Lawyers
(3d
ed.
1994).
included in the New Member
S.M.A.S.H.
Station One: Surplus
each new member.
WordsNew Member Dinners
The first way to “exercise” a senThe committee was pleased with
tence on the S.M.A.S.H. circuit is to get
the idea of experienced
members
rid of surplus words.1 There are two
offering
to have
ways
to do
this: dinners with new
members
after
opening
(1) Use concisethe
words.
Asreception
Wydick at
the
last
conference.
However,
wisely points out, “Compoundwe
conthought there
mightthe
be vital
a wayjuices
to getfrom
structions
. . . suck
2
morewriting.”
participation
from both new and
your
Here is amembers.
short list This
of thehas
most
experienced
been
common
compound
in
achieved by
solicitingconstructions
participation of
my
students’
writing,
and
concise
experienced members using the
statements
to take
places:
manipulation
of thetheir
pitiful,
but sadly
Orientation packets that are sent to
Surplus
Concise
conference experience. This
generated
At that point in time
then
a great response. These experienced
in connection with
with, about,
members were then paired
with people
concerning
who
indicated
on
the
LWI
registration
in order to
to
form
that
this
was
their
first
LWI
subsequent to
after
conference.
Sixteen
dinner
groups
were
for
for the period of
assembled,
representing
a
total
of
32
despite the fact that
although
because
of the
factmembers
that because
experienced
LWI
and 96 new
clearly,
obviously
[Avoid using
members.
these words.
A Departure
After four years on What
the is obvious
to you,
committee, two of those as chair
of the
may not be so
committee, Tracy McGaugh is leaving
to the reader.
the committee to make room for some
Rather than
“new blood” with new ideas.
saying that
true, story of Tracy McGaugh’s first
Please send The Second Draft
editors news items relating
to publications, promotions,
program changes, or
upcoming conferences
and meetings.
Tracy McGaugh, 2002-04 Chair
THE SECOND DRAFT
THE SECOND DRAFT
something is “clear,”
Outreach Committee
make it clear by
explaining what facts
Our fourth Golden
Pen Award was
establish your point.]
presented to Judge Robert E. Keeton in
January
2004.
A description
ofway
that to
(2)
Word
order.
The second
event, along
withwords
photos,inappears
on is
identify
surplus
a sentence
the
LWI
website.
It
was
the
best
to answer the question “who (the subattended
of allwhat
the award
ject)
is doing
(verb)ceremonies
to whom to
date. We even
two federal
judges
(object)?”
with had
the fewest
number
of
words
and in the order the reader
in the audience.
wouldRichard
expect to
get information,
e.g.,
Wydick
was nominated
subject,
followed
verb, Pen
thenaward,
object.
for the 5th
annualby
Golden
The
are aquickly
few examples
and following
the committee
and
where
choosing
concise
phrases
and
unanimously agreed on that
choice.
changing the word order to subjectWydick has written one of the
verb-object removes surplus words:
most successful legal-writing books of
Original:
all time—Plain
Lawyers—so
in
Because of English
the factforthat
he has
obviously
made
an
extraordinary
the appellate brief defendant
contribution
the cause
submittedtothere
wereof better legal
writing.
misstatements of fact, the attorney
This
award would
alsocourt.
continue
was
sanctioned
by the
words;
containsthe
surplus
our (23
efforts
to diversify
awards.words;
We
object-verb-subject
word
order)
have not yet recognized an influential
Revised:
book on legal writing, and this seems
sanctioned
the attorney
court
like The
a good
place
to start. The
book
because
his
appellate
brief
misstashould be familiar to almost everyone
ed the facts. (12 words; no
who has any interest in legal writing.
surplus words; subject-verb-object
Note: The LWI Board voted to adopt
word order)
the recommendation of the Committee and
will award theStation
GoldenTwo:
Pen Award
S.M.A.S.H.
Mindtothe
Richard
Wydick
at
a
reception
to be held on
Gap
Friday,
January
7,
at
7:00
p.m.
at the
If you have ever ridden the
subAALSinConference
San
Francisco.rememway
London, in
you
probably
ber the announcement, in a sophisticated
BritishCommittee
accent, to “MIND THE
Plagiarism
GAP” between the platform and the
entrance
train. You
can mind
This yearto
thethe
Plagiarism
Committee
the
gaps
in
your
sentences
in two
added an extensive bibliography
of
ways:
materials to the LWI web page. We also
(1) Mind the Gap between the subhave posted there current events about
ject, verb, and object. To avoid ambiplagiarism,
including
article
guity, not only
shoulda news
words
in senabout Harvard
faculty accused oforder,
tences
be in subject-verb-object
plagiarizing
and their
excuses.
be no
gaps between
but
there should
the subject, verb, and object.3 For
example:
Publications Committee
Original:
gives
to a party
The
common
law
1. The
Journal
is on
track.
malicious
conduct
who can
prove
Volumes
8 and
9 have
been published.
a
claim
for
punitive
damages.
Volume 10 is completed and in
(Here, even though the subject,
production. Volume 11 will be the
verb and object are in order, there
Proceedings issue.
is a wide gap between the verb
2. The
Journal Board is in the
and
object.)
process of rotating. Mary Beth Beazley
will be taking over the position of
Revised:
Editor-in-Chief, subject to approval of
gives aAs
claim
the The
LWIcommon
Board oflaw
Directors.
somefor
punitive damages to a party who
senior members of the Journal Board
can prove malicious conduct.
retire, new members will replace them.
(Here the gap is closed and the
Subject
to theofLWI
Board’s approval,
meaning
the sentence
is clearer.)
the new Board members will be Mary
Garvey
Algero,
Kenneth
Chestek,
(2)
Mind
the Gap
between
the
Kirsten
Davis,
Kristen
Gerdy,
Steve
modifying clauses and what
they
4
Johansen,
and Joel Schumm. The Board
modify.
of the
following
two
will The
also meaning
be selecting
Assistant
Editors.
sentences
depending
the
3. Atchanges
the suggestion
of theon
Journal
location
of with
the modifying
words:
Board and
the approval
of the
LWI Board, LWI held its first Writers
Original:
Workshop before the Seattle
Ann has discussed your plan to
conference. The Workshop was
travel to New York with her
designed to assist LWI members who
husband. (It is unclear in this
are engaged
scholarly
for the
sentenceinwhat
“withwriting
her husband”
purposes
of
gaining
tenure
or
is modifying.)
promotion. There were ten participants
Revised:
as well
three
facilitators:
Annashas
discussed
withSteve
her
Johansen,
Jill your
Ramsfield,
and
Lou Sirico.
husband
plan to
travel
to
New York.Lou
(ItSirico,
is clear
from this
2002-04
Chair
sentence that “with her husband”
is modifying
Ann’s
discussion).
ALWD/LWI
Survey
Committee
placement
“only”
is this
TheThe
major
change inofthe
Survey
another common example where
year was partnering with Cicada
the gap between the modifier and the
Consulting to outsource much of the
word it modifies impacts the meaning
technical
work on the project.
of
a sentence.
Review
of 2004 Survey
Original:
During
2003
Survey
You can use thethe
car
only on
Committee
began
considering
and
Saturday.
(This
could mean
investigating
the possibility
of only
that on Saturday,
you can
drive themuch
car, not
thework
motorcycle,
outsourcing
of the
on the
boat, etc.)survey with the intent to
ALWD/LWI
Revised:
make the survey data more easily
the car onbySaturdays
You can
available
anduse
manipulable
ALWD
only.
(This
clarifies
the meaning
and LWI members. We hoped
to move
that the only time you can drive
away from reliance on the excessive
the car is on Saturday, not any
volunteer time needed to administer
other day of the week.)
and compile the survey as well as to
fulfill specific
requests
for customized
S.M.A.S.H.
Station
Three:
Active
survey reports.
Voice
The
Committee
began discussions
The
next
station focuses
on using
5
with
Cicada
Consulting
the ALWD
the active voice over theatpassive.
While
this is
a hardOntario.
and fastIn
rule,
conference
innot
Windsor,
for
the mostthe
part
sentencesrequested
are more
November,
Committee
precise
the active
voice.
Again, this
that thein
boards
of LWI
and ALWD
relates
back
to
the
subject-verb-object
approve a motion to allow the Coorder.
is more
likely toand
Chairs A
of reader
the Survey
Committee
understand a sentence in this order. A
the Presidents of ALWD and LWI to
sentence in the passive voice, however,
negotiate a contract with Cicada to
changes the order to object-verb-subprovide
services
beginning
in the
ject.
In the
following
example,
CONTINUED ON PAGE 6
CONTINUED ON PAGE 6
5
6The
S.M.A.S.H.Work-Out
Circuit: Tightening Flabby
Sentences
revised sentence in the active voice is
clearer than the original sentence in
the passive voice:
Original:
It was insisted by the witness that
the goods were delivered by the
company’s employee. (15 words;
passive voice)
Revised:
The witness insisted that the
company’s employee delivered the
goods. (10 words; active voice)
Not only is the revised sentence
easier to read, but it also has five less
fewer words.
There are occasions where the passive voice is useful, particularly if you
do not know the identity of the subject
or you want to create uncertainty.
For example, if you are representing a
defendant who punched someone, you
may opt to write, “The victim was
punched,” instead of, “The defendant
punched the victim.” But it is good to
at least run a sentence through this
exercise to see if the active voice
makes it clearer.
S.M.A.S.H. Station Four: Short
Sentences
A partner of a large litigation firm
once advised me that he would not
read an associate’s work if it contained
a sentence longer than three lines. Of
course, there are times that a clear sentence is longer than three lines. It is,
however, a good guideline to remember that short, clear sentences are generally the most effective way to communicate.6
I found that first year law students
in particular tend to cram all of their
ideas into one, long, run-on sentence,
sometimes over ten lines long. There
are a few ways to remind students to
keep their sentences short:
(1) One thought, one sentence. After
finishing the final draft of a paper, you
should proofread one sentence at a
time to make sure that each sentence
contains one main thought. If there is
more than one main thought, consider
6
breaking up the sentence into two or
three separate sentences.
(2) Consider using lists. If there is
one main idea, but the sentence is still
too long, another approach is to use
lists or tables to make the information
clearer.7 For example:
Original:
An employee can qualify to
receive a pension if he or she has
worked at the company for twenty
years and is at least fifty-five years
old, or if he or she worked for the
company for at least ten years and
is sixty-five years old or older, or if
he or she contributed to the
pension fund for fifteen years, in
which case age does not matter.
Revised:
Employees can qualify to receive a
pension if they have: worked at
the company for twenty years and
are fifty-five or older; worked
at the company for ten years
and are sixty-five or older; or
contributed to the pension fund
for fifteen years.
S.M.A.S.H. Station Five: Hereinafter
Simplify the Words
Hopefully, by the time a sentence
goes through the first four stations of
the S.M.A.S.H circuit, it is already
tight. However, there is at least one
more way to make wordy, lawyersounding sentences simpler: good
word choice.
I noticed that some students think
that because they are in law school,
they should use lofty words to express
their ideas; but, the simpler the words,
the clearer the sentence. There are at
least two ways to check word choice
and to avoid the pitfalls of redundant,
verbose legal writing.
(1) Avoid nominalization. As
Wydick explains, nominalization is
turning a verb into a noun;8 e.g., turning “object” to “objection,” or turning
“decide” into “decision.” While it
sometimes makes sense to nominalize,
it often adds unnecessary words to a
sentence.9 Consider the following
example:
Original:
THE
OND DRAFT
When you make an objection
during trial, the court will render a
ruling before allowing the
testimony of the witness to
continue. (22 words)
Revised:
When you object during trial, the
court will rule before allowing the
witness to continue to testify.
(17 words)
(2) Use familiar words. The best way
to avoid sounding like a lawyer is to
avoid using legalese.10 I encourage my
students to use familiar words. It
paints a much clearer and more powerful picture. For example:
Original:
Your client intentionally misled
me about his last will and
testament.
Revised:
Your client lied about his will.
Using the S.M.A.S.H. Circuit in Class
S.M.A.S.H. captures age-old concepts of writing simple and compelling sentences, but puts them in a
new package. It took only about two
classes to get through all five stations
of the S.M.A.S.H. circuit, including inclass written exercises. Wydick’s book
provides numerous exercises you can
work through with your students to
demonstrate each of the concepts.
I was amazed how my students’
writing improved after being introduced to the S.M.A.S.H. circuit. It
seems that many law students have
made their way through high school
and college without learning basic
writing skills. A quick workout on the
S.M.A.S.H. circuit teaches some basics.
Moreover, S.M.A.S.H. made grading quicker. When I ran across a long,
awkward sentence, I simply wrote
S.M.A.S.H. next to it and circled the
appropriate letter to direct the student
to a station that would tighten the sentence.
S.M.A.S.H. helped my students
write tighter sentences and made
grading more efficient. Now if there
were only a work-out that would produce tighter muscles in less time! u
THE SECOND DRAFT
Legal research and writing teachers Alison Julien SECThe law school faculty at the University of Oregon
granted tenure to Suzanne Rowe.
and Jill Hayford (Marquette Law School), were
recently promoted to Associate Professors of Legal
Writing.
Upon unanimous recommendation of the faculty
of the Indiana University School of Law at
In January, Eileen Kavanagh (Thomas M. Cooley
Indianapolis, the Trustees of Indiana University
have approved Joel Schumm’s promotion to
Law School) was promoted to full professor with
Clinical Associate Professor of Law.
tenure.
Joe Kimble (Thomas Cooley Law School) has finished work on the preliminary draft of the restyled
Federal Rules of Civil Procedure, now available at
www.uscourts.gov/rules/newrules1.html. Joe
was the principal drafter. He also published an
article called The Straight Skinny on Better Judicial
Opinions in Volume 9 of The Scribes Journal of
Legal Writing, published several short articles in
the Michigan Bar Journal, and spoke about jury
instructions at the annual meeting of the American
Judicature Society. He currently serves as the president of the international organization Clarity and
is helping to organize a July conference in
Boulogne, France.
Legal writing professor Robin A. Boyle (St. John’sNew York) was selected to receive an Outstanding
Faculty Achievement Medal at the University’s
Convocation in May. The university awards the
medal to faculty members who have demonstrated
deep, personal commitment to the aims and purposes of the university and dedication to its mission in the areas of instruction, advisement, professional growth and research. One of her colleagues
noted, “Robin’s many contributions to the law
school in teaching, scholarship, and service over
the last eleven years, including her past service as
a co-advisor to the St. John’s Moot Court Honor
Society and her present service as Assistant
Director of the law school’s Writing Center and
Coordinator of its Academic Support Program, certainly evidence this commitment and dedication.”
Lisa McElroy (Roger Williams) accepted a position at Southern New England School of Law as
the Director of their Legal Skills program. The
position carries a title of Dean and will be a
tenure-track position.
Elaine Mills and Debbie Mann (Albany Law
School) have been promoted to Professor and
Associate Professor, respectively, and were recommended for long-term contracts by the law faculty.
Professor Mills also directs the law school’s
Writing Center.
The University of Memphis School of Law granted
tenure to David Romantz and promoted him to
Associate Professor.
THE SECOND DRAFT
The faculty of Southern Illinois University School
of Law voted to promote Sheila Simon and
Melissa Marlow-Shafer from Assistant to
Associate Clinical Professors of Lawyering Skills.
The promotion comes with a five-year contract
and a salary increase.
The Temple Law School faculty voted to accept a
new union contract with the university, and as part
of that package five legal writing professors,
Kathy Stanchi, Susan DeJarnatt, Ellie Margolis,
Robin Nilon, and Bonny Tavares, were awarded
salary increases commensurate with the tenuretrack faculty appointees.
Director of Legal Writing and Clinical Professor of
Law Wanda Temm (University of Missouri–Kansas
City) was recently granted voting rights by the law
faculty.
Judith Tracy’s (Boston College) article was accepted by the Touro Law Review for its upcoming
symposium issue on legal writing: “I see and I
remember; I do and I understand”: Teaching
Fundamental Structure in Legal Writing Through the
Use of Samples, 21 Touro L. Rev.___ (forthcoming
May 2005).
Paul Von Blum, Writing Advisor at Loyola Law
School in Los Angeles, is the author of a new book
titled Resistance, Dignity, and Pride: African
American Artists in Los Angeles, published by the
UCLA African American Studies Center, where he
is a senior faculty member.
Mark E. Wojcik (The John Marshall Law School),
Director of Global Studies, was promoted to
Professor of Law.
Program News
The Rutgers-Camden School of Law faculty unanimously voted to change the designation of its
research and writing faculty from instructors to
clinical-faculty status.
The faculty at Stetson University changed the designation of research and writing faculty from contract status to clinical-tenure status.
CONTINUED ON PAGE 28
27
See Richard C. Wydick, Plain English for Lawyers,
explain how to start an oral argument: May it please the
Brown
v. whatever
Board
of Education
7-22 (3d Ed. 1994). The entire chapter, entitled “Omit
court [or
opening
you prefer], my name is . . .
Surplus Words,” targets verbosity.
and I represent . . . . The issue in this case is . . . . Both
Schunk, Santa Clara University
How could a brief
in present
an
The difference
between
the
2 John
Id. atD.11.
sides
a brief oral argument
in support
of their
3 School
important case like this
be soposition, andBrief
for the
Appellants
andI
See id.ofatLaw
41-44.
client’s
the rest
of the
class actsinasBrown
judges.
4 See id. at 48-52.
different from the office
memoranda
much
of thetolegal
writing
allow
any student who
wishes
intervene
to first-year
ask ques5 Last
May,
this country celebrated the
and advocacy documents
law therelaw
students
submit
can
be found in
tions.many
Usually
is time
for two
sets of
arguments.
I
See id.
at 27-32.
6 fiftieth
briefly
critique
each
person
who
argues
and
allow
other
Id. at 28.
anniversary of Brown v. Board of
students submit? The answer is that
the different judgment about which of
7 See id. at 33-39.
students
provide feedback
as techniques
well.
Education, 348 U.S. 886 (1954). Many law the Brief for the Appellants
in to
Brown
these three
should be
8 See id. at 46-47.
The
students
theThe
class.
It’s a fun
schools and other organizations held
eschewed doing one of the
things
that thoroughly
used mostenjoy
often.
appellants’
9 See id. at 23.
way
to
start
the
semester
and
introduce
them
to advocacy.
forums to discuss the effects of this
many legal writing textbooks suggest
attorneys in Brown relied mainly
on
10 See id. at 43-25.
They
leave
class
with
the
two
McBoyle
cases.
Through
the
seminal United States Supreme Court
students do routinely. In this instance, the first method to make a
cases, they learn that courts actually use statutory condecision. If one ever has a chance to
the Brief for the Appellants could
constitutional argument citing 37
struction tools and even resort to the dictionary to underreview the briefs filed in this appeal,1
cite 37 cases in less than
1650
words
cases in less than six pages. Many law
stand the words of a statute. The students also get some
one might be surprised by how the
because it did not provide
short
to use conthe
practical
experience students
applyingfeel
the compelled
tools of statutory
initial Brief for the Appellants contrasts summaries or synopses
of
the
cases
it
third
method
almost
to
the
exclusion
struction. They learn the importance of the plain meaning
with the way in which many first-year
cited. Many students rule,
todayand
feelthe statute of
the first
methods.
makes
forces
themtwo
to think
howThis
the historilaw students use and cite cases in their
compelled to “recount
relevant might
their
writing much
Students
calthe
perspective
be relevant
to thelonger.
meaning
of a
legal writing.
facts of the precedents”
or
to
include
using
this
third
method
routinely
can
statute. They also get their first exposure to oral argument
When one reads the Brief for the
lengthy “descriptionsinofathe
find
it
difficult
to
write
an
office
non-threatening setting. And best of all, the students
Appellants in Brown, one cannot help
analogous cases.” get to argue which they
memorandum
u only three or four
love to do!using
1
N EWS
Publications and
andPromotions
Promotions
The graduating seniors at Rutgers-Camden School
of Law named Randy Abate Professor of the Year.
This award marks the first time in the school’s
institutional memory that a legal writing professor
or skills professor has received the honor.
Joan Blum (Boston College) recently published an
article, Clarifying the Law on Post-Employment
Covenants, 178 New Jersey L.J. 765 (Nov. 22, 2004).
The article looks at the theoretical underpinnings
of the New Jersey law on post-employment
covenant not to compete and questions whether
the Appellate Division opinion in The Community
Hosp. Group v. More, 838 A.2d 472 (N.J. Super. App.
Div. 2003), aff’d in part and rev’d in part, 2005 WL
767012 (N.J. Apr. 05, 2005), was consistent with
that underlying theory.
Bill Chin (Lewis and Clark) wrote two articles
accepted for publication: The “Relay” Team-Teach
Approach: Combining Collaboration and the Division of
Labor to Teach a Third Semester of Legal Writing, 13
Perspectives 94 (Winter 2005) and Multiple
Cultures, One Criminal Justice System: The Need for a
“Cultural Ombudsman” in the Courtroom, 53 Drake
L. Rev. __ (forthcoming 2005).
Jo Anne Durako (Stetson) was a panelist in an
ABA-sponsored CLE video-conference program
webcast from Washington, D.C. in February. The
Chair of the ABA Business Law Section organized
the two-hour program on Contract Drafting. The
CLE program was a follow-up to a program on
Document Drafting that Jo Anne appeared in at
the ABA Conference in Atlanta last August.
Lisa Eichhorn (South Carolina) was promoted to
full professor and awarded tenure.
The law faculty of Ohio State University voted to
recommend the appointment of five staff attorneys
to clinical faculty appointments as Associate
Clinical Professors of Law. Two of the attorneys,
Terri Enns and Beth Cooke, have taught legal
writing as an overload and have attended Legal
Writing Institute conferences.
18
26
Jane Gionfriddo (Boston College) has written an
article exploring analytical feedback by legal
writing teachers that is coming out this summer:
“The Reasonable Zone of Right Answers”: Analytical
Feedback on Student Writing, 40 Gonzaga L. Rev. __
(forthcoming 2005). In addition, Jane organized
the December 2004 meeting of the New England
Consortium of Legal Writing Teachers, held at
Boston College Law School. During this day-long,
hands-on workshop, participants critiqued a sample memo and then shared insights on each other’s
written feedback in small groups. Over thirty
legal writing teachers from around New England
(and from as far away as New Jersey and Indiana)
attended.
Dr. Deborah Hecht (Touro Law Center), Director
of the Writing Resources Center, was awarded a
Dean’s Summer Research Grant last year to write
Any Angels in the House? 19th Century Attitudes and
Anxiety About Marriage, Divorce, and Divorce Law as
Evidenced in Selected Works by Edith Wharton. She
presented her work at a Touro Law Center Faculty
Colloquium in March and at the Edith Wharton
Society Conference in June. Her article, Private
Letters and the Nineteenth Century Law: Edith
Wharton’s Questions About Ownership and the Right
To Publish Private Letters, has been published in the
Touro Law Center Law Review, Vol. 20, No. 2.
Spring 2004. Also, her work titled, Representing
Lawyers: Edith Wharton’s Portrayal of Lawyers and the
Lawyering in The Touchstone and Summer” has been
published in Law and Literature, edited by
Michael J. Meyer, Rodopi Press, 2004.
Steve Johansen (Lewis and Clark) attended the
Power of Storytelling Conference in
Gloucester, England in May. Steve, along with
Diane Edelman and Emily Zimmerman, organized the first LWI-ALWD sponsored conference in
Europe, Preparing for Practice: Legal Skills Training in
Central and Eastern Europe, held at the CEELI
Institute in Prague, Czech Republic, on May 17-20.
The Conference brought together professors,
judges, and practitioners from the United States
and 17 other countries to discuss how to incorporate skills training into European law study.
Topics discussed included how to develop legal
writing programs, clinics, student competitions,
and legal English training.
THE THE
SECOND
DRAFT
DRAFT
SECOND
A Legal Writing Lesson from
Mixing it Up: Introducing
Statutory Construction and
Oral Argument
Toni Berres-Paul, Lewis & Clark Law School
but be struck by its length. It is only
Possibly, the Brief for the
cases in less than eight pages.
thirteen pages long. The legal argument
Appellants in Brown can remind legal
If law schools seek to teach
ran
only
from
the
middle
of
page
6
to
writing
teachers
of
the
importance
of
future
attorneys how to write concise
On the first day of the spring semester, I used a tried and
the top
of pageinterpretation
13. The appellants’
legal
the sure
judgment
should use in
legal arguments, the Brief for the
true
statutory
exercise
that I’m
manystudentsA
Tribute
argument
consisted
of
only
1638
words.
selecting
how
to
use
cases
in
any
legal
Appellants in Brown can serve as a
of you have used, threw in a sprinkle of oral argument,
Continued
from
page 1reminder that winning legal arguments
In
this
short
space,
the
appellants
analysis.
Generally,
students
can
use
a
and presto: the students had a lot of fun and learned
he was. Things that most of us take for granted–getting
some
newto
skills.
Forcourt
this to
lesson
students do
premanaged
cite the
37 different
casesome
in one
of three ways
in their legal
need not be long arguments.
out of bed, taking a shower, picking a dropped item off of
2
reading
statutory
construction tools,writing.
including
the students can use a case
First,
cases in about
support
of its argument.
the floor–were major1 events in Adam’s life. To accomplish
generisproposition only. This
plain meaning
rule and
thelegal
Latin canons ejusdem
This casesuch
went
to the United
States
for a general
If one contrasts
this
all he did while overcoming
adversity
is amazing.
and
expressio
unius.
Supreme
Court onhe
anhas
appeal
from
only the
argument with much of the legal writing requires students to state
Adam’s
true legacy is
the inspiration
given
to the
all of
The exercise
based on
the two
decisions:
judgment
of
a
three-judge
district
court
general
proposition and
cite
the
case.
submitted
by lawisstudents
today,
the McBoyle
us for what can be accomplished with courage and hard
McBoyle v. United States, 43 F.2d 273 (10th Cir. 1930), rev’d,
in Kansas. It did not arrive at the court
Second, students can use
a case
contrast would be stark. Under the
u for a
work.
283 U.S. 25 (1931). The decisions revolve around the folthe granting
a petition for a
general proposition while
using
a
standard conversion rate used to set
Michael Smith, Mercerthrough
University
School of of
Law
lowing statutory language from the National Motor
writ of certiorari.
parenthetical for illustration. For this,
word count limits for appellate briefs
Vehicle Theft Act: The term motor vehicle when used in
the
student
states
the
general
(e.g.,
280
words
equals
one
page),
the
this section shall include an automobile, automobile
proposition,
cites the authority, and adds 2 The summary of these three
legal argument
in the
Briefmotor
for thecycle, or any
truck,
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wagon,
other selftechniques borrows much from the
Appellantsvehicle
would not
havedesigned
been onlyfor5.85
propelled
runninga parenthetical
on rails. 18 with information
description used by Linda Edwards in
help the reader understand
pages when
double-spaced
a current
U.S.C.
sec. 408.
I hand eachonstudent
a slip designed
of paper to
containing
the statutory
language
and At
the following
informaLegal Writing: Process, Analysis, and
the authority’s
application. Third,
word processing
software
program.
tion: The act was passed in 1920, and Congress has had
Writing forOrganization
The Second
Draft
135 (3d
ed., Aspen L. &
several opportunities to change the language in this defiBus.
2002).
Another
helpful
description
[T]he appellants’ legal argument in Brown would barely qualifyWe
as encourage
a “major you to consider submitting
nition section, but has not. Question: Defendant recently
of
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annual survey...How
couldtoaThetheSecond
stole
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theof
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depth
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you have published before.
the U.S. Attorney’s
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Richard K. Neumann, Jr., Legal Reasoning
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andI divide
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many
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class in half,
andlaw
thenstudent
I divide
each half
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a larger
(4th ed.,article,
Aspen L.or&can
Bus. help
2001), at
into groups of four. I assign half the groups to defend the
you clarify ideas
that
might
merit
further
pages 99-104.
airplane thief and the other half to be the U.S. Attorney. I
development
elsewhere.
We are delighted
students
can
use
a
case
for
a
general
this
length,
the
appellants’
legal
tell the groups they must create arguments to support
to hear
from first-time contributors!
propositionInand then develop
an in-text
argument
qualifyconstruction.
their
clientinbyBrown
usingwould
tools barely
of statutory
as an example. This method
as a “major
assignment”
forpick
purposes
of summary
addition,
each
group must
a spokesperson.
I allow
requires At
thethe
most writing. Here,
thegroups
ALWD/LWI
annual
survey.
Forto 25 minutes.
the
to work
together
for 20
arguments
to present
end
that time,
I select
two groups
students
state a general proposition and
thisof
survey,
“[a] major
assignment
is one in
towhich
the class.
spokesperson
for each group
then comes
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product
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front
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room
and
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at
“counsel
table.”
I briefly
from a few
lines to an entire paragraph.
than 5 pages.”
THE SECOND DRAFT
7
From the Desk of the
Writing Specialist
Creating a Rock-Solid Foundation for IRAC
Jacquelyn E. Gentry, Whittier Law School
IRAC rocks! No, IRAC sucks! Our
students may not always express their
opinions so vociferously, but writing
specialists know that many students
have strong opinions about legal writing techniques. Whatever the plethora
of writing problems we confront, a
recurring commonality appears in the
challenges we face, and one of the
most common is how to overcome
deficiency in effective use of IRAC for
legal analysis.
I teach legal writing in addition to
serving as a writing advisor, and, consequently, I know that we present
IRAC thoroughly. Even so, I have
been mystified that students continue
to have difficulty using IRAC despite
meticulous instruction and further
reinforcement in class. So many students have come to me for individual
help with IRAC that I created a workshop for small groups to help students
develop IRAC skills through the analysis of hypothetical examples.
The workshop format works well
because students seem to find it less
intimidating to ask questions when the
setting engenders small group conversation, and they also tend to be less
self conscious than in one-on-one conferences. Students have responded
positively, with a typical comment
being, “It was like the light bulb finally
went on. Now I think I can really use
IRAC in my legal writing.”
Because some students in the
workshop simply do not understand
the IRAC process, we first review the
basic concept before moving on to
apply IRAC in analysis. I project the
explanatory material on screen so students can follow the examples. To
illustrate the basic concept, we use
IRAC to analyze a simple hypothetical
example. I show the italicized portions below on the screen, and we talk
about the examples as we go along.
The relevant facts are the following.
Plaint was standing in a buffet
line holding a tray at a business
8
uuu
meeting lunch. Daft walked up to
Plaint, snatched the tray from
Plaint’s hands, and yelled that
Plaint should leave because he
was an ignorant jerk who should
not be at the meeting. As a result
of the incident, Plaint’s glasses
fell off and broke, and he left
immediately, feeling publicly
humiliated. Plaint wants to know
if he has a cause of action against
Daft for battery.
Issue (identifies the issue for analysis stated as a question, or in the TRAC variation
stated as a topic sentence)
Does a person commit a battery
when he pulls an object from
another person’s hands in an
insulting way, but does not touch
the body of the other person?
(Or if formulated as TRAC, the
issue would be stated as a Topic
sentence giving the conclusion
rather than as a question.)
Rule (formulates the legal rule)
A battery is an unconsented act, done with
the intent of bringing about a harmful or
offensive contact with the person of another, which causes such a contact.
(Therefore, the four required elements are
lack of consent, intent, touching, and
harm.)
Application (applies the law to the facts)
Plaint apparently did not consent
to Daft’s snatching the tray,
which Daft intended because one
does not snatch something without intending to do so. Daft
apparently intended to be offensive when he yelled at Plaint in
an insulting way, which caused
harm by humiliating Plaint and
breaking his glasses. Although
Daft argued that he did not touch
Plaint, and therefore did not actually contact him, it is more reasonable to conclude that Daft
indirectly caused contact with
Plaint by contacting the object
that Plaint was holding, which
may be considered an extension of
Plaint, and thus all four elements
are satisfied.
Conclusion (reaches a conclusion based on
the reasoning)
Therefore, Daft’s act constituted
battery.
We then proceed to build on that basic
example, showing how to apply precedent to the case at hand, i.e., reasoning
by analogy.
Now suppose the Plaint v. Daft case is a
decided appellate opinion that is mandatory authority in your jurisdiction. You
have a new client, Cleo, who wants to
know if she has legal recourse for her problem, as follows.
Cleo is a beautiful fashion model
who was wearing a skimpy costume at a photo shoot on the corner of a busy street. She was
holding a fancy parasol as part of
her costume. Mr. Holiman, a
religious fanatic, was preaching
across the street when he saw
Cleo. He dashed across the street
and snatched the parasol from her
hand, shouting, “Cast aside
worldly things, you wanton harlot.” In the process, Cleo’s parasol was damaged and her makeup
was ruined when she burst into
tears. The photo shoot had to be
extended to make repairs, and as a
result Cleo lost another scheduled
modeling job which cost her considerable monetary loss.
Our client wants to know
whether she has a cause of
action against Mr. Holiman for
battery, and our legal authority
is Plaint v. Daft.
THE
OND DRAFT
famous letter and speech. I began by
introducing the three fundamental
persuasive techniques from classical
rhetoric. I explained that they had
spent the entire fall semester learning
about and applying logos, persuasion
through logic and rational argument.
CREAC is the quintessential example
of this process of persuasion. Classical
rhetoricians also identified pathos and
ethos as persuasive devices. Pathos, or
persuasion through emotion, incorporates both emotional substance (arousing an emotional reaction in your
audience through the substance of
your argument) and medium mood
control (arousing an emotional reaction through the medium of the message). The final technique, ethos,
means to persuade one’s audience by
establishing one’s own credibility
(character, good will, and intelligence).
One of the most critical considerations for an advocate is knowing one’s
audience, so I spent some additional
time explaining the elements of ethos.
Judges and attorneys (and LRW professors) are busy readers; they are
reading your brief or memo because it
is their job. Since my students often
come from more laid-back undergraduate experiences, this is a wonderful
opportunity for me to teach them that
respect, zeal, professionalism, and
good will (how the advocate is disposed toward the audience) all need to
be deliberately conveyed to the reader.
In addition, one’s own intelligence
and ability can be conveyed through
good research, clear organization,
practicality and eloquence, among
other things. In other words, if you
spell your client’s name wrong on the
cover page of your brief, if your citations are not well-edited, or if your
organizational structure is unclear,
your reader will doubt your credibility
and your legal analysis.
I then spent some time talking
students through the Letter from
Birmingham Jail, pointing out King’s
use of logos, pathos, and ethos. Creating
emotion without being overly emotional is not easy, so I point out how
the letter persuades through pathos
when, through use of repetition, it
becomes almost sermon-like. King
also uses his knowledge of his audiTHE SECOND DRAFT
ence (one member of the eight
Alabama clergymen that he is writing
to is Rabbi Hilton Grafman, and King
cleverly makes an allusion to Martin
Buber). Since students have spent
time in the previous class dissecting
the court documents leading to King’s
imprisonment and seen photos of
police brutality during the
Birmingham marches, King’s letter is
powerful on several levels
The letter is also a wonderful
example of the classical exordium, or
introduction to an argument. King
first establishes his goodwill toward
his audience, summarizes his argument, lays the groundwork for an
argument whose subject he asserts has
been misrepresented, and presents his
credentials. Students see later in the
semester that they do something similar in an appellate brief. After King’s
introduction is the exposition, argument, rebuttal (itself a fascinating
study of showing how your opponent’s facts are incorrect, logic faulty,
and conduct unethical), and conclusion. The entire document is an
example of argument by redefinition:
he questions his opponents’ logic
instead of merely attacking them.
Finally, and this was the best part
of “my best class,” I played the entire
eighteen-minute recording of King’s I
Have a Dream speech. The experience
was memorable because some students were obviously emotional and
most avoided eye contact. There are
so many times in law school that we
feel emotionally constrained, forced to
discuss real life as “legal issues,” and
when we’re just simply nervous. The
climate of that classroom changed during those eighteen minutes. When I
turned off the CD, I began by asking
for comments. Many students felt
comfortable commenting about the
power of the speech and the rarity of
this type of advocacy in the modern
day. Students who had never before
volunteered raised their hands. One
man actually came to my office the
next day and said he had cried. This
doesn’t happen often in LRW.
I then guided students through
the written speech. First, I told them
to look for uses of refrain, hyperbole,
and figurative language. King uses
SEC
multiple shifts in sentence length to
capture and keep his audience’s attention. He also employs dramatic shifts
in tone. Moreover, it is an interesting
example of two literary devices. King
employs anaphora, the use of the same
word or group of words at the beginning of a series. He also employs
epistrophe, the repetition of the same
word or series of words at the end of a
series. Second, I introduced the idea
of a theme, something students were
able to come back to as they prepared
their own appellate briefs. This year, I
received more than one brief that successfully repeated the client’s theory of
the case in both the statement of the
case and the argument.
In my best class, I achieved my
goals of introducing students to classic
persuasive writing and speech techniques, bringing a discussion of race
into the classroom, and simply making
students care. The class was memorable for all. u
1
2 J. ALWD 209 (2004).
U.S. 308 (1967)
2 388
Please make sure all of
your legal writing
colleagues are getting
The Second Draft by
e-mailing address
changes or additions to
Yonna Shaw, LWI
Program Assistant, at
[email protected]
25
Revealing Skills:
Remembrance of Things
Not Long Past
Mary B. Trevor, Hamline University
School of Law
In my best class, we spend less time
explicitly addressing legal writing
skills than we do in any other class of
the year, and the students, I think,
emerge the better for it. The class
comes at a particularly low time for
many first-years: the second class of
second semester. First semester
grades are just out. Many students
have gone on-line to access the lowest
grades they have ever received—some
have received one of those grades
from me. In my class, they have just
broken open (I hope) an intimidating
packet of material that they will use
for their appellate brief assignments in
the coming weeks. They’re hearing,
with anxiety, about doing oral arguments later in the semester. For many,
it is a time of major self-doubt, and
they are not having much fun.
As a young teacher, my instinct
was to discuss this self-doubt in class.
But most students who are upset are
doing their best not to show it to their
classmates. I have learned, therefore,
that students are usually uncomfortable about any extended public discussion of this issue. One student
worries that his face will betray his
distress; if I happen to look at another
student as I speak, she fears that her
classmates will think I am talking
about her. Sometimes students are
skeptical about whether a teacher can
truly understand what they are going
through, and they may even resent an
endeavor to “relate” to them.
My students need a reminder that
they are capable human beings; however, they are resistant to overt efforts
to provide this reassurance. And after
this build-up, you might well view
what I do instead as pretty insignificant. But teaching in law school (like
teaching elsewhere, I suspect) is often
a matter of inching forward rather
than leaping forward. Here is one
inch.
In my best class, we discuss client
24
letters. The first part of the class is a
routine discussion of the goals and
techniques involved. But I then ask
my students to participate in a simple
exercise. I ask each of them to pick a
non-legal area with specialized terminology or skills that they know something about. I then ask them to pair
up with a classmate and explain their
area of knowledge to the classmate in
an understandable way. I suggest that
the classmate be an active listener and
ask questions about anything unclear.
About halfway through the exercise
time, I ask them to switch roles.
Occasionally I encounter a student
or two who struggles to come up with
a topic. But students who have been
admitted to law school have generally
already managed to accomplish some
pretty interesting things in their lives,
and I usually am struck by how quickly and enthusiastically students come
up with topics and discuss them. The
faces of the speakers become animated
and self-assured; the listening classmates are attentive. I openly eavesdrop on conversations about quilting,
calculating baseball statistics, being a
computer technician, giving a speech,
and teaching English as a Second
Language. As I watch, pocket Kleenex
packages (it is, after all, January in
Minnesota) become soundboards and
sanders; class notes sprout diagrams;
and students display hidden thespian
skills.
Once finished, we return to the
group to discuss what worked well.
We must first concede that demonstrations or pantomime, although fun, will
not work for a client letter. We quickly
move beyond that, however, to note
some “surprising” things: people have
used analogies, they have defined
terms that are not in everyday usage,
they have explained the underlying
goal of the activity, and they have
given examples of how it is done.
They have found that they need to
simplify rather than embellish. I really
do see a few light bulbs click on, and
students who have never voluntarily
spoken up in class have something to
say.
By the end of class, I can check off
an entry on my teaching “To Do” list:
the exercise has served both to rein-
force first semester concepts and as a
bridge to a new slant on the presentation of legal analysis. But in my mind
it has accomplished a more important
goal: it has helped my students (and
me) to have fun on a day when we
needed to have fun. We stopped
thinking about law school grades and
were reminded of other skills. And
the faces leaving the classroom are
brighter than the faces that came in.
u
Classical Rhetorical
Devices & the Martin
Luther King, Jr. “I Have a
Dream” Speech
Kate Weatherly, University of Oregon
School of Law
My best class took place the day after
Martin Luther King Day, as my students and I examined the writings and
oral advocacy of the late Dr. King. We
were about to embark upon two
months of appellate brief writing and
oral argument. My goal was to introduce–and make students excited
about–persuasive writing and oral
advocacy. I am constantly looking for
“real-life” examples of powerful persuasive advocacy, and, having been an
attorney for the Native American
Rights Fund before coming to Oregon,
I strive to bring critical race theory
issues into the classroom whenever
possible.
Consequently, I was inspired by
Shaun Spencer’s article in the Fall 2004
issue of the Journal of the Association of
Legal Writing Directors. In his article,
titled Dr. King, Bull Connor, and
Persuasive Narratives,1 Mr. Spencer
shares an in-class exercise that
explores persuasive narrative techniques in Walker v. City of Birmingham.2
I expanded on his idea by preparing a
three-class examination of persuasive
writing and oral advocacy techniques
using the Walker briefs and case, an
outline of classical rhetorical devices,
and Martin Luther King, Jr.’s Letter
from Birmingham Jail and his I Have a
Dream speech.
For the third class in this series, I
asked students to read Dr. King’s
THE SECOND DRAFT
Issue
Does our client have a cause of action for
battery when a man snatched her parasol,
causing her discomfort and monetary loss?
Rule and Rule Explanation
harm. After stating the rule, you must
explain the rule, sometimes referred to as
the rule proof, by describing the holding,
facts and reasoning of Plaint v. Daft.)
Compare the facts of Plaint v.
Daft with the facts of our case,
showing how they are like or
unlike the facts. If they are alike
on each element, then the result
should be the same. If they are
more unlike the precedent case,
the result may be different.
Students are able to go through each
element and show how each is satisfied under the analogous facts.
Conclusion
State the answer to the issue, and
briefly state why.
We then discuss how changing
the facts of the hypothetical may
change the outcome of the analysis, as
in the following example.
Now suppose a slightly different factual
scenario, again using Plaint v. Daft as
authority.
Cleo is a beautiful fashion model
who was wearing a skimpy costume at a photo shoot on the corner of a busy street. Mr. Bumper,
a businessman, was rushing to an
appointment when he dashed
across the street and happened to
be looking at traffic instead of
where he was walking. He
bumped into Cleo and knocked
her down, causing her costume to
be damaged and her makeup to be
THE SECOND DRAFT
ruined when she burst into tears.
The photo shoot had to be extended to make repairs, and as a result
Cleo lost another scheduled modeling job that cost her considerable monetary loss.
Our client wants to know
whether she has a cause of action
against Mr. Bumper for battery,
and our legal authority again is
Plaint v. Daft.
Issue
Does our client have a cause of action for
battery when a man accidentally knocked
her down, causing her discomfort and
monetary loss?
Rule and Rule Explanation
harm. Again, after stating the rule, you
must explain the rule by describing the
holding, facts, and reasoning of Plaint v.
Daft.)
Compare the facts of Plaint v.
Daft with the facts of our case,
showing how they are like or
unlike the facts. If they are alike
on each element, then the result
should be the same. If they are
more unlike the precedent case,
the result may be different.
Students are then able to go
through each element and show how
each is satisfied under the analogous
facts except for intent, because Bumper
did not intend the act that caused the
harm. They recognize the legal significance of different elements as triggered
by different facts. They may also
observe that the cause of action affects
the analysis, for example, that Bumper
might be liable for negligence though
not for battery, applying what
they know about the elements of
negligence.
Conclusion
State the answer to the issue, and
briefly state why.
Like any other teaching technique,
it would be an exaggeration to claim
that using hypothetical examples can
instantly solve every problem students
have with IRAC. The technique of
examining hypotheticals in the workshop setting does, however, provide a
solid foundational skill for understanding the basic IRAC concept and
later applying that concept to more
complex legal analysis. u
Current Events Are an
Effective Teaching Tool
Grace H. Barry, Louisiana State
University Law Center
“Good morning class. How many
of you read the New York Times this
morning?”
Both silence and stares of “are you
kidding” crossed the faces of twentytwo first-year law students two
months into their spring semester.
Since the first day of class in the fall, I
had often opened class with this query
and subsequently lecture about the
importance of keeping informed and
abreast of national and world events.
For months, the students have
been reminded that they are the future
leaders of America. When cajoling
them with such delusions of political
grandeur did not inspire them, promises of finding that potential law
school exam “hot topic” was yet
another enticement.
I regularly open class with a
news story–be it local, national or
global–that relates to the practice of
law. Complex legal issues sometimes
titillate–other times bore. But when
one news story evoked a “light bulb
moment” for the entire class–no matter
how dim—I knew a teachable moment
had just occurred.
Last spring, class began with a
reminder of the pending deadline for
appellate briefs. The tension level
meter peaked as I spoke. Then in a
seemingly unrelated (but familiar)
query I asked “How many of you read
the New York Times today?”
9
Ah . . . a teachable moment ripped
right out of the headlines! u
tone and authority attributed to majority and dissenting opinions in cases.
I swiftly
placedUniversity
a headline
Steven
D. Schwinn,
of from
Maryland School of Law
original criminal appeal—to procedural questions arising out
Each panel had to vote on the outcome
the trial of Martha Stewart’s stock broof the posture of the case.
Perhaps the most interesting issue
in the case at the beginning and the
A Glimmer offrom
Insight
Peter
Bacanovic,
theasoverhead
ker,
About
a year
and a halfonago,
part of a writing program
a pedagogical standpoint
turned
out to be the
end of its
deliberations.
Thequestion
student
projector.
“Martha
Stewart?”
they
Teresa
Kissane
Brostoff,
University
of
evaluation, a clinical professor—and one of my dear
related to the interestsjudges
of justice:
Could the
our various
client’s case
be
discussed
argusilently groaned. “What does our
Pittsburgh School of Law
colleagues and friends—had this to say about
legal writing
reopened “in the interests
of
justice”
even
after
30
years
and
ments in the case and found themappellate brief about non-competition
and analysis in the law school: “We teach our students how to apparently exhausted post-conviction
processes?
The
selves advocating
for the outcome
that
agreements have to do with her?” they While one’s “best” class depends on
apply
the
law,
but
we
ought
to
be
teaching
our
students
how
to
Maryland
Post-Conviction
Act,
like
many
similar
acts,
each
determined
that
the
law
dictated.
silently asked themselves. Within
many factors and probably varies from
While each
student
his or her
create the the
law.”
I must confess
that Iand
did notyear
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full the
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exception
of wrote
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to year,
legal this
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own
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import
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his
statement
until
he
and
I
took
up
his
challenge
justice”
for
extraordinary
and
unforeseen
circumstances.
a new appreciation for their pending
classroom is best when students expethenobody
majority
or what
the dissent
dependand together
upper-level
writing rience
course ainglimmer
which of insightThe
that
knew
that phrase
summer
jobscreated
as law an
clerks
emerged.
or aproblem
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ing
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the
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we demanded
that our stockbroker
students do just that:ofcreate
the law.about the
meant.
There
the
Martha Stewart’s
excitement
skills
theywas
are no case law interpreting this phrase, andstudentsand
found
that voting Not
within the
Peter Our
Bacanovic
was
on trial
for perbeginning
to learn. My
students
and was
I scant
idea was
simple,
perhaps
even obvious,
for two
legislative
history
indeterminate.
panel shifted from the beginning vote
jury.
Certainly,
numerous
legal wranexperienced
that typesurprisingly,
of class at the
faculty—a
legal writing
professor
and a clinical
professor—
the situation led to extreme frustration. (At one
to the ending vote, sometimes based
glings,
motions
in limine and
pre-trial
of this past
spring
who sought
to collaborate:
we would
carve beginning
out a special
point
oursemester.
students even
complained that we were deliberately
on the advocacy and explanation
conferences
and documents
occurred
begin towriting
understand
the the
perspecsection of a required
upper-level
Appellate To
Advocacy
hiding
ball—that we
(the faculty)
know
the answer
offered
by the must
briefs,
themselves,
or to
before
thework
trial.hand-in-hand
Months and with
months
tive ofPostthe court, the the
students
received
course to
an upper-level
problem!)
But ourtheir
students
also
exhibited
flashes
of
fellow students. The students
of preparation, and now the prosecubriefs submitted in a real case heard
Conviction Clinic on a case involving an innocent
man
inspiration: they turned
to “the interests
of justice”
in other
experienced
the power
of effective
tion rested. The jury retired to deliber- recently by one of the Pennsylvania
serving a life sentence who had been incarcerated more than
statutory contexts, theywritten
lookedand
to other
jurisdictions,
and they
oral
advocacy.
ate. Struggling with the perjury eleappellate courts. The students’ assign30
years
and
who
had
apparently
exhausted
his
postcrafted
policy
arguments
out
of
what
little
legal
authority
they
After
this
classroom
experience,
ment of “corroboration,” the jury
ment was to consider and decide the
the
students
wrote
powerful
opinions.
convictiontoremedies.
The to ask the
could find. They
returned
the courtroom
case, based only on the materials preThose
writing
for the majority
seemed
collaboration
was
a
quid
constructed
arguments
judge an important question.
sented in the briefs, and to draft the
to
understand
the
authority
that
pro quo: the the
postby piecing together their
Specifically,
jury wanted to know
opinion of the court.
words carried.disparate
Those writing
for the
conviction
clinic (and,
and unrelated
whether
Martha
Stewart’s secretary’s
I devoted a class to putting the
dissent
had
carefully
crafted
argutestimony
could
be corroborated by
student judges into three-judge panels
importantly,
our client)
authority and by using
ments, but they seemed to naturally
her
own the
handwritten
note to Martha.
as they would be for the actual court
received
much-needed
their creativity. In short,
adopt the more personal tone of a disI’m
not sure
support
of 25whether
additionalthe judge was as conference following oral argument.
they created the law.
sent. The student judges seemed
stunned
as
I
was
to
learn
that
neither
Each
panel
was
to
decide
the
case.
students from the writing
In deconstructing
invested in the outcome
of the case
attorney
addressed
this in any pre-trial After giving initial instructions, I circourse and,
in exchange,
this
experience,
it
and
how
they
communicated
that outdeliberations, but she swiftly proculated among the student panels, lisstudents in the writing course received a singular
educational
occurred to us that thecome
defining
characteristic
of
these
to
the
larger
legal
audience.
nounced that she “would take briefs
tened to the students, and helped to
opportunity to work with a live, complex case.
students’ issue—and, indeed,
each student’s
assignedthe
issue
in
In addition
to enriching
opinon that question into the night”
advance discussion. I was amazed at
We
structured
the
Appellate
Advocacy
course
around
this
case,
to
varying
degrees—was
that
we
(the
faculty)
did
ion-writing
assignment,
this
class
also
and would reach her decision in the
the quality and depth of learning takaffected(And
howfor
themany
students
crafted
their
concrete issues that we identified as central ing
to our
client’s
not deliberations.
already know the answer.
issues,
like the
morning.
place
in those panel
arguments
for
their
appellate
brief
case,Gasps
and we
assigned
each
issue
to
a
team
of
four
students,
“interests
of
justice,”
the
answer
simply
did
not
exist.)
Nor
and some giggles of
The students discussed the briefs in
assignment.
They
often
with two students
on each
side.
Because thethe
course
did we
know the arguments.
We didn’t
even
haveharkened
immutable
nervousness
permeated
the
classroom.
case was
with each other,
pondering
and helpful
back
to
the
frustrations
Appellate Advocacy,
we added
a hypothetical
court order
ideas
about howtoto approach these complex questions.
“Whaaa?”
the students
exclaimed.
“Is thetrial
usefulness
of those
documents
that
provided
to
this
real?a petition
Everything
that went before
decision-makers. ItThey
denying
for post-conviction
reliefthem
to theasotherwise
occurred to usmoments
further that
wethe
didbriefs
not already
know
them
during
their
time
as
decisionthis
moment
is effectively
the did not
they felt
the frustration
expressed
original,
unaltered
case file. down
This twist
change the
the answers
because we did not create the problem. We did
makers. Understanding their intended
drain?
This
stockbroker’s
guilt
or
when
the
briefs
did
not
fully
the legal documents
and transcripts, we did not
substance of our students’ work; it simply placed that work in not write explain
audience and its perspective gave the
innocence
willappellate
rest on acourt
brief (where
that is our client’s
or analyze
applyand we
a hypothetical
post- the prevailing
definelaw
theorissues,
did
create
the case
filemore
withcritical
the
students a broader
and
researched,
written,
and
submitted
the
law
to
their
case.
The
students
conviction petition likely would have landed, anyway). We
benefit of prior exhaustive
legal
research.and
In other
words,
eye in
reviewing
editing
their we
‘into the night?’”
even lamented that poor citations left
met with students as a class and separately by
issue each week did not do the kind of writing.
leg work The
that experiential
we legal writing
facultythat
learning
Suddenly, having six weeks to
them unable to find the pertinent subover the course of the semester to monitor and guide their
customarily do when we
create
problems
or simulations
for
took
place
in this “best”
class taught
write a brief, before entering the world ject matter in the precedent cases,
progress.
We
required
students
to
draft
an
appellate
brief
on
our
students.
Instead,
we
took
the
actual
case
file
as
it
existed
advocacy, perspective, tone, and proas a law clerk that summer, seemed
without additional struggle on their
ways that
lecture
or
their
issue,
to
make
an
oral
argument,
and
to
rewrite
their
(and
was
developed
through
factualinresearch
overa the
course
almost like an eternity. I was no
parts. The advantage of a well-written fessionalism
reading
alone
on
these
subjects
never
brief
based
on
our
feedback
and
additional
research.
We
then
of
the
semester),
distributed
it
to
our
students,
and
worked
longer a demanding professor but
brief and the detriment to both attorcould.
While it isproblem-solving
sometimes difficult
fed theClaus.
results The
of our
students’
work
work
the of a poorly
with them
as partners
a collaborative,
Santa
students
“got
it.” into the
ney
andofclient
written
brief in
for
a
professor
to
set
the stage, step
clinic again,
on the using
actual the
post-conviction
and related
team.
Once
morning’s petitionnever
needed an explanation
in theory,
back,
and
trust
the
students
to beyond
shoulnewspaper
more effective than
as the students experiencedThis
what
petitions forwas
relief.
approach pushed our upper-level students
der
the
heavy
burden
of
learning
for
any well
in making
judges
encounter every
when
Ourprepared
students’ lecture
issues ran
the gamut from
substantive
the day
primary
skills in analysis and argumentation that they
themselves,
the
rewards
in
this
case
writing canas ineffective
the
that research and
reading the briefs submitted
basespoint
for post-conviction
relief—such
developedtointhem.
their firstwere
year.well
Ourworth
students
moved beyond
the effort and the
be
tantamount
to
success
or
failure,
In
addition
to
valuable
insights
assistance of counsel in the original criminal case and in the
their roles
as passive interpreters
of
the
law
in a synthetic,
risks. u
Writing Courses
The
10
Next Step
THE SECOND DRAFT
make it to the in-office stage, in part
because he hadn’t misspelled the partner’s name! Another student paid
homage to Sheila Simon’s terrific
IRAC teaching technique with an oftrepeated phrase: “stay out of the
blender!”
I don’t typically ask students for
feedback on a class-by-class basis, but
because this was a new experiment for
me, I solicited a few opinions. In summary, the students found that this was
a great “wrap-up” class because it: 1)
gave them a chance to get over oral
argument jitters, 2) reminded them of
how much they had learned in the
course and would bring to their summer jobs, and 3) provided an enjoyable
activity to close out a long and hard
year. As their teacher, I walked away
with a smile, knowing that something
had sunk in and that my students
were prepared for the tasks that awaited them this summer. u
CALENDAR
and that sometimes this research and
about brief writing, the students also
Current Events Are an
Clinic
Collaborations
and
Creating
the
Law
In
Upper-Level
writing
must
be
performed
post
haste.
began
to understand the difference in
Effective Teaching Tool
Sometimes You Have
to Be the “Guide on
the Side”
David I. C. Thomson, University of
Denver College of Law
For my Best Class, I did nothing. I did
nothing to prepare for it, unless you
count selecting the book I took to read.
I did virtually nothing in the class,
except read that book with my feet up
on the desk. We work so hard to prepare for class, and in class, it seems
utterly incongruous that this was my
best class last semester. But I do think
it was, and this is why.
Increasingly, I have been using
collaborative learning methods in my
classes. There are a lot of reasons
favoring the use of collaborative learning in law school, among them
reduced stress and better results.
Virtually all law school classes could
benefit from these teaching methods,
but LRW is particularly well suited.
Since the mission of our course is to
teach forms of thinking and expression, much of what we do as teachers
is guide our students in a process of
self-learning. You can’t teach someone to write well solely through
lecture. Similarly, you can’t teach
THE SECOND DRAFT
someone to synthesize the holdings of
several cases solely through lecture.
These concepts can be illustrated in a
lecture format in part. But to be fully
understood and deeply learned, an
approach based on multiple teaching
techniques is required. One of these
techniques must be some form of
cooperative learning. When students
start to teach each other how to
express themselves better, and challenge each other’s conceptualization of
a legal problem, their learning will
improve.
Perhaps more importantly, I
believe that increasing the use of cooperative learning in law school more
effectively prepares law students for
the practice they will enter. So much
of the current legal education process
is experienced by the student as a solitary affair. Law students primarily
work alone. They take their finals
alone, they
ask questions in
class alone,
and most of
the out-ofclass assignments (such
as final papers in seminars) are completed alone.
Yet collaborative skills are very
important in the practice of law.
Lawyers often work in firms, try cases
in teams, and work with other attorneys to achieve mutual goals. If legal
knowledge is primarily communicated
through dialog and constructed
through consensus, increasing the
amount of collaborative learning in
the law school curriculum surely must
help produce lawyers who are better
at participating in what is
fundamentally a group-based process.
So back to my best class. I teach
two sections of LRW, one in the day
division and one in the evening division at the University of Denver’s
Sturm College of Law. Because of the
various holidays in the fall semester, I
had one extra evening class this year
on my syllabus. At this point in the
semester, I had the students working
on a collaborative writing project in
teams of two. While cooperative
learning has all of the advantages
described above, it does require more
student coordination–of schedules,
meetings, draft reviews, etc. For the
evening students–who often work fulltime jobs during the day–accomplishing an appropriate amount of coordination to complete the assignment is
often quite difficult.
The solution to my “extra” class
for the evening students was quite
simple: I gave it to them. That is, we
met at the regular time in the regular
class room, and I gave them the class
period to work with their partners on
their project.
Here is what made it my best
class: I sat there with my feet up on
the desk and I got to sit there and listen to all the learning going on in the
room. If they had a question, they
would come to ask me. But mostly
they worked on their own, and I read
my book. They worked hard through-
You can’t teach someone to write well
solely through lecture.
out the class period–talking, debating,
reviewing the examples I had given
them. It was just amazing to sit there
and listen.
A saying in the literature of collaborative learning scolds us teachers for
being too fond of the sound of our
own voices: “You need to be less of the
‘Sage on the Stage’ and more of the
‘Guide on the Side.’”1 The night of my
“best class” this saying really hit home
to me. I was the Guide on the Side,
and the students took over the teaching–and the learning. u
Alison King, From Sage on the Stage to
Guide on the Side, 41 College Teaching
30 (Winter 1993).
1
23
Keeping It Real
Fair Park, and Johnnie Jones, Mrs.
Miller’s attorney, had spoken to my
class the preceding semester about his
experiences as a pioneer civil rights
attorney. The students paired and
shared their thoughts with one another on the two cases, and an enthusiastic class discussion followed. Thus,
choosing a topic very relevant and
familiar to the students kept the
assignment real for them. On that
cold Tuesday morning I hoped they
would be as enthusiastic when discussing another civil rights case,
Walker v. City of Birmingham,4 which I
had asked them to read over the Dr.
King holiday observance. I was not
disappointed.
Walker is a United States Supreme
Court decision affirming the convictions for criminal contempt of eight
black ministers, including Dr. Martin
Luther King, who led a civil rights
march in Birmingham, Alabama, on
Easter 1963. Four justices dissented in
three separate opinions. I gave the students a bit of background and
explained that Dr. King wrote his
famous “Letter from the Birmingham
Jail” while imprisoned on this criminal
contempt charge. When I asked students to comment on the differences in
the majority affirming the contempt
convictions on procedural grounds
and the dissenting opinions condemning the abridgement of First
Amendment rights, gloved hands shot
into the air. Some of the students were
shocked at the differences. “Is it ethical for Justice Stewart to say ‘Violence
occurred’ when onlookers, not
marchers, threw rocks?” one student
asked. What an opening for explaining
the role of passive voice in persuasive
writing! Students who had not spoken
at all during the previous semester
suddenly piped up. With a very relevant social justice discussion before
them, the students had soon completely forgotten about the chilly classroom.
The stories and cases we
discussed–The True Story of the 3 Little
Pigs, Miller, and Walker–are probably
already contained in the LWI idea
bank. What made them work so well
for me this semester was that my stuContinued from page 21
22
dents could relate to them. The lesson
to be gained from my experience is
this: When choosing cases and problems for class discussion, choose
something your students will consider
relevant. I managed to translate my
students’ passion for social justice into
a “heated” discussion of persuasive
facts. You can too. u
1 259 F. Supp. 523 (E.D. La. 1966).
2 394 F.2d 342 (5th Cir. 1968).
3 Section 201(b) of the Civil Rights Act
of 1964 enumerated specific types of
business covered by the Act.
4 388 U.S. 307 (1967).
A Telling Last Class
Hollee S. Temple, West Virginia
University College of Law
For my final class, I built upon an idea
mentioned at last year’s LWI conference: a “lightning round” in which
students would have a quick public
speaking opportunity prior to presenting full-blown oral arguments. I
wanted to both raise the stakes and
give my students a chance to meet
their opposing counsel before our oral
arguments, so I combined my two sections for this final class. When my 44
students arrived, I had written two
statements on the board:
1) Top 10 Things I Can Do to Impress
the Partner on my Persuasive Writing
Assignment and 2) Top 10 Things I
Learned in LRRW to Take to My
Summer Associate Position.
I began the class by telling students that as soon as I finished giving
the instructions, they would need to
find their opposing counsel (this made
sense because it gave them both a
chance to meet and also an opportunity to figure out their brief-exchanging
plans). I framed the task for the final
class as a “game,” a trick that I used to
remarkable effect all year (students
were always more interested in “playing a game” than in “completing an
exercise”).
Next, I directed the students to the
statements on the board. I told them
that they would be creating two “Top
10” lists with their opposing counsel,
and added that they would need to be
particularly diligent for two reasons.
First, they would soon be asked to
share an item from their lists with the
entire class, but I wouldn’t reveal
which side of the room would be
charged with which list until after
they had worked in their teams.
Second, I made a “house rule” that no
student could repeat something another student had said (this provided a
strong incentive for a lot of brainstorming).
I gave the students about ten minutes to complete this task. Showing
no signs of end-of-the-semester
malaise, the students dove into the
game, and the room was abuzz with
conversation. Most of the teams wrote
at least 15 discrete items for each list!
After the ten minutes were up
(and I clarified which side of the room
would tackle which “Top 10 list”), I
told the students that before they
revealed their items, I wanted them to
stand and introduce themselves with a
“May it please the Court, I am …”
introduction.
This was, of course, practice for the
real oral argument that would take
place the following week.
The students’ responses were both
educational and gratifying. The students had actually absorbed the persuasive techniques that I had presented in the second semester, and moreover, they were excited to stand up
and share their knowledge. Their suggestions for the “Things I Can Do To
Impress the Partner” list ran the
gamut, from “humanize your client”
to “avoid misleading the Court” to
“don’t forget about proofreading.”
Surprisingly, even though it was the
last class, most of the students took
notes on the tips that their classmates
had shared.
When we got to the “What I
Learned in this Class” list, I was nervous. What if the students didn’t think
they had learned ten things over the
year? But my concerns were soon
allayed, as I heard the “zingers” that I
had repeated all year coming back at
me. “No one cares what we think,”
one student said, giving a nod to my
catchphrase for reminding students to
ground arguments in authority.
“Don’t misspell the client’s name,”
another said, adding that an interviewer had recently remarked that he
was one of a handful of students to
THE SECOND DRAFT
Students now accept it as the helpful
various casebooks. That week, we
Looking at the
Horizon
tool that it is. And that certainly is a
asked them to pay attention to the
Continued
from
page
1
order of the information in cases that
good class! u
Angela Caputo Griswold, University of
they found easy to follow.
constructed
as they were coming out
of following
their first week, noticing
landscape. But every so often, I come over
Maine
School simulation,
of Law
The
as one ofthe
our
The Small Group
year. Our first-year hypotheticals and simulations,
as
rich
and
the
crest
of
a
in-class exercises, we brought in two hill in the late afternoon, and the light
Progress
Conference
Legal
paradigms
work.
Convincingupon the
realistic
as they are,
are constructed
very legal
bathesanalysis.
the trees and
hills with soft
colors that lift my
different
versions of the same
students
thiswe
fact,
however,
can be to
a use
M.be
Chesler,
University
authorityofthat
expect
our students
analyze
or
and make meSusan
glad to
in thatWidener
spot at that
moment.
Wetoused
a simple,
short, heart
single-issue
challenge.
many years,
imposed
School
of
Law
Harrisburg
argue theirFor
problems.
But if Iour
first-year problems
are
I’m
also
lucky
enough
to
spend
some
time
each year
analysis. One version followed proper
IRAAC,
or
one
of
its
other
forms,
on
order.
constructed upon their own answers, they IRAAC
leave little
roomIn the second
on a version,
beach on Cape Cod on Martha’s Vineyard Sound,
students.
I simply
instructed
students
My best
occurred
however,
IRAAC waswhere
out ofthere
order.
for students
to develop
as more
active creators
of thethe
law.
is nothing
but class
lapping
water aswhen
far asI Iplayed
can
on the formula, told them of its benethe
role
of
facilitator
and
not teacher.
All of the same information
There is little there to create.
look.appeared
Without a boat, that’s as far as I go—looking
at the
fits, and required that they follow it.
The class was a small group conferon both all
versions;
the only
difference
In contrast, our upper-level approach—with
its
horizon
from the sand.
To those students who were particuence, where four to five students diswas
the order in which it appeared.
uncertainty
and
potential
frustration
students—
Coming to an
LWI conference always affects me as
larly
resistant,
I would
explain
that for ourWe
cussed the progress of their work on
asked students to read the two
ultimately
empowered
them
as
active
agents
in
the
law-making
a
teacher
the
way
living
with these landscapes does as a
they should follow IRAAC anyway
versions and to think about which ver- the appellate brief assignments. I was
process.
The
course
challenged
them
to
develop
person.
As
I
start
my
twelfth
teaching
legal
writing,
because legal readers expect to see
introducedyear
to this
type of
class
while II
sion was easier to follow and why.
sophisticated,
skillsand
to deal with—and,
will enter
a familiar
place
teachprofessor
material at
I know
information
in upper-level
a certain order
was
an and
adjunct
New well.
York
Then weindeed,
asked them to gather
in small
thrive
upon—the
of
live-client
My
students
will
struggle
in
the
same
ways
that
those
they
needed
to be inherent
mindful indeterminacy
of their
Law
School,
and
I
incorporated
it
into
groups to discuss their findings. Each
audience.
Then
I would
add,
“You transcended
practice and
unsettled
law.
Students
their
basic,
preceding
them
have
struggled.
Some
of
my
classes
will
my
second
semester
Legal
Methods
group then reported its consensus on
will
see the
benefits
eventually.”
In
at and
Widener-Harrisburg.
first-year
skills
in application
and argumentation
developthey
a preferred
go well,
some willclass
bomb,
I will not be able to predict
whichto
analysis
and
retrospect,
this
tactic
is
akin
to
telling
richer, more complete set of skills that included
which. But some of the presentations I go to in the next
why. creative
children
that theyand
need
to eatargumentation.
their
It Works
groups
chose thefew
“proper”
problem-solving
creative
InAll
this
process,
days will shineHow
a new
kind of light on what I teach
vegetables
to
grow
up
big
and
strong.
IRAAC.
As
we
went
around
the
room
we shared many “light-bulb moments” in the course, where
and how I teach it. What I take home with me and bring to
Not very compelling. Moreover, the
a week
beforeofthe
group the
and
hadand
students
their
group’s
students visibly understood the shift in their
roles
began explainmy
teaching
will help About
me have
that feeling
cresting
learning process in my IRAAC classes
conferences, I advise my students that
preference,
we
kept
a
tally
on
the
to become comfortable as creators of law.
hill and seeing the trees and the hillside anew more often
was passive. This approach made me
I will be playing the role of supervisboardwriting
of thecourse
“votes” andwhen
notedI the
This
collaboration
between
the
upper-level
go back into
my classroom.
wonder whether I could find a way to
ing attorney and that, as is regularly
reasons. What appeared on the board
and clinic,
had ainvariety
of benefits,
helping to better
When I go todone
other
it will
engage
the then,
students
the process
and from
inpresentations,
a law firm, they
willbebelike
asked
we could not have written better ourserve
a
client
to
introducing
upper-level
writing
students
to
the
looking
out
at
an
ocean,
which
I
have
no
idea
how
to
get them to see the benefits of IRAAC
to
discuss
their
anticipated
arguments
selves: a compelling list of reasons
challenges
of live-client
practice.
And similarwhy
collaborations
approach
or traverse
may neverbrief.
even have
for
themselves,
before any
paradigm
for and
the appellate
I tell thought
them to I
the proper IRAAC was
stronger.
could
havesuggested.
even more copious benefits. But The
the singular
would
to. Bybetheprepared
end of the
though,
I will
was
even
to program,
support their
argustudentsbenefit
went through
the want
IRAAC
My offering
“best class”
really two
of this
was towas
empower
students to systematically,
develop from explaininghave
been
given
my
first
sailing
lessons.
If
and
when
I am
ments
with
a
discussion
of
the
releeach part
classes
which mytocolleague
Nancy
vant
facts
and
caselaw,
but
that
we
passivein
interpreters
active creators
of the law.
In
this
respect,
ready
to
leave
the
beach,
I’ll
have
a
chance
of
navigating
and why the order made sense. They
Wanderer
and
I gently
guided challenge
stuwill not be referencing any specific
we certainly
met
my colleague’s
that
“we ought
to beappreciate
through
those waters.
seemed
to truly
the order.
dents
to
discover
the
benefits
of
by name. helps
I alsoyou
tell as
them
to be
teaching our students how to create the law.” We also asked the students to explain
I hope that cases
this conference
it has
IRAACPost
onScript:
theirAfter
own.thisWe
decided
to
to
discuss
their
theory
ofand
the
prepared
didwork
not like about
thehelped
min- me—that your horizons are sharpened
article was written, we what
learnedthey
that our
always
withhold IRAAC from students for
case
and
any
policy
and
equity
argugled version.
that
it that you leave with renewed friendships,
led to the governor’s commutation of our client’s life sentence.
After 36 They
years commented
expanded
and
two weeks at the beginning of the
ments they can make to support their
was
confusing
and
hard
to
follow.
in prison, a wrongly convicted Mr. Walter Arvinger went free.
information, and energy as legal writing professionals.
semester. During those weeks, we
position.
After this exercise, we “revealed”
eased students into IRAAC.
The small group conferences are
why certain analyses are easier to folFirst, we took advantage of the
held
approximately two weeks before
low than others. They all had one
fact that students were just learning
the
appellate
briefs are due, and each
thing in common: They present the
how to read cases, and we reviewed
one lasts for forty-five minutes. There
information in the same order. We
with them a particularly easy-to-folthen discussed that order, with the stu- are 4 or 5 students in each conference,
low case: a case that followed IRAAC
all of whom represent the same client
describing each
part of
IRAAC
Bringing Upper Level Coursedents
Experiences
Into
the
Legal Writing
Course
form. We asked the students to read
and coming up with the words to con- for the appellate brief. Every student
the
case and
think about
the type of
to answer
questions
is required
Timothy
D. Blevins,
Barry University
level courses
is similar,
for me,and
to
were upper
struct the paradigm. When weTeaching
information
the
court
discuss theatissues
during
the conferInspired by the
theme
of conveyed
the last issueinof The Second
placing
proper punctuation
the end
of a sentence.
The
done,Draft—What
the familiar IRAAC
wasthe
right
each
of the case. As
we wrote
talkedthat getting
the
My isinitial
questions
target
Keepspart
Us Going?—Tim
Blevins
freshonteaching
story of
goes
but theence.
thought
complete.
The first
semesthere
the board in front
theon,
class.
through
the
case, we
Then, I ask
sturules. challenges
relevantunique
on provides
did not
it there
however,
“We,”
ideas from
working
withdiscussed,
upper-levelindistudents allows
him
to reach his
terput
of legal
writing
tothe
both
rectly,
each
part
of
IRAAC
and
asked
dents
to
explain
how
those
rules
it.
our own.
The
students
constructed
first-year students in new and interesting ways. Working
with
students
students
and professor—challenges
that are replaced by new
the students to think about the order
applied and what facts supowned
part of it ones
because
they
at a later stage of their legal education also givesThey
him insight
into
by the
time theshould
studentsbemove
into upper-level courses.
in which the information was presentport their arguments. Several of my
discovered
it
themselves.
After
revealtechniques that will be helpful to students just starting out. If “The
Some first semester comments, such as “I didn’t know it
ed. After, we discussed whether the
questions elicit the students’ ideas
thatbe
students
ing the
code, we require
Next
Step”
has
inspired
you
to
think
about
teaching
an
upper-level
would
this hard,”about
give way
to upper-level concerns
analysis in the case was easy to follow. follow it and spend a good
how they plan to deal with their
part of the
course,
this
column
may
give
you
some
more
food
for
thought:
namely,
regarding
the
exam
schedules.
A
perplexing
remark,
A number of students noted that it
I
opponent’s more
potential
arguments;
year learning how to use it effectively
that
teaching
secondand
third-year
students
gives
you
new
ideas
to
however,
“I
don’t
understand
what
we
are
doing
or
why we
was much easier to follow than many
question
them
about
the
troubling
in different contexts, but we now have
the legal
writing
classroom.
ONcases
PAGE I
12
ofbring
the back
casestothey
were
reading
in their
facts in the recordCONTINUED
or about the
little to no resistance to IRAAC itself.
Teaching IRAAC:The
Power of Self Discovery
[Not Just] For Newer Teachers:
THE SECOND DRAFT
11
for the conference, and are usually
boom box and my CD of the Fifth to
well-prepared even though this
class. I placed the box on a desk in the
“assignment” is not graded.
middle of the classroom, CD inside, to
although
student
feedback
Finally,
give the boom box “elephant impact.”
discovered in my preliminary research
is
not
always
indicative
of
success
or
I taught for a while. Students glanced
thatdoing
their it,”
opponent
willtolikely
are
continues
plagueuse.
many students
beyond
the overwhelmingly
control the interview at
inthe
realboom
time so
that
they could take
failure,
I
received
box
continually.
I askyear.
the students
to describe
their
first
My experience
teaching
Client Counseling
and
notes.
I
truly
enjoyed
the
experience
of
being
able
to
positive feedback from my students.
On the board, I wrote
vertically:
theory of the case, to comment on the
Advanced
Appellate Advocacy, both upper The
levelstudents
elective at the top
respond
to
student
questions
regarding
the
content
of the
of the class felt Issue
other participants’ articulated theories,
courses, has afforded me the opportunity ofthe
being
with conference
“interview”
by posing the question “What did the client
progress
allowed them
and to explain how they plan to
Rule
perplexed
students
when
the
pieces
of
the
puzzle
begin
to
say?”
and
thereby
re-directing
the student back to the client
to
collaboratively
discuss
the
issues
address the competing policy considRule
Explanation
and
come
up
with
more
sophisticated
take
shape
and
they
recognize
the
hows
and
whys
of
legal
rather
than
a
fact
sheet.
erations. As the students begin to
stu-video greatly
writing.
the possibility that a
Rule reduced
Application
express a greater understanding of the arguments and strategies. ForThe
dents
who
were
still
struggling,
it
prostudent would miss orConclusion
misunderstand any of the facts given
issues, my questions focus more on
vided them with the appropriate
level
by
the
client.
The
video
also eliminated the anxiety of
their
strategic
decisions,
such
as
which
[T]eaching Client Counseling and Advanced
Appellate
of guidance to complete
their research
arguments to emphasize, whether to
students
who feared they Idid
notthe
hear
something
in the
told
class
I intended
to play
Advocacy,
both upper level elective courses,and
hasstart
afforded
developing stronger argumake arguments in the alternative,
interview or that theymusic
had heard
the
information
wrong.
I
that
would
demonstrate
both
ments.
me
opportunity
of being
with
students
andthe
how
to effectively
portray
theirperplexed
saw an increase in thethe
quality
of theand
writing
as reflected
in
structure
content
of
IREAC
Because students improve so
client or
opponent
to the court.
more
complete,
yet
succinct,
fact
sections
in
their
memoand
that
I
thought
the
piece
began
when
thethe
pieces
of the puzzle
begin to takemany
shape...
skills during the small group
with the “Rule.”
I told
students
to lisranda.
student
regarding
the videos
were
progress
conference, this,
to The
me, is
my comments
Why It Works
ten
to
the
structure
of
the
music
as
very encouraging, as well. The experience was not exactly
“best class.” u
well
as
its
substance.
I
would
place
One such opportunity arose during a Client
the same as the live client interview but the uniformity in a
Not only does the small group
check mark
on the
board
whenever
Counseling
course. This
courseaispractiwell received
by the
delivery
of the information
overrode
other
concerns.
The I
Beethoven’s
Fifth
and
progress conference
simulate
notes that
I thought
students
because(the
it brings
learning mix the interacformula was balanced:heard
The students
were
happierexpressed
and more
cal experience
reportinto
to athe
superIREAC
an element of IREAC.
tions
between
people
as
opposed
to
the
more
passive
aspects
interested,
and
I
was
presented
with
better
and
more
vising attorney), it also encourages
Dramatically, I pressed the “on”
Cronin-Oizumi, Saint Louis
of
classroom
learning.
is also funindeto teach.Ann
It consists
of
interesting documents.
group
discussion
andItstimulates
button of my boom box. Students
University School of Law
three
components:
Another opportunity
to seethey
pieces
of the puzzle
pendent
analysis. client
Since interviewing,
my students client counseling, and
gasped when
recognized
the
are not permitted
collaborate
or begin with a client
negotiating.
I createtoproblem
sets that
begin
to
come
together
occurred
during
Advanced
Appellate
Fifth. As Beethoven’s varied repetiOn a cold day in November 2002, I
speak withproceed
each other
regarding
their session, and result
interview,
through
a counseling
Advocacy.
in this
coursedun,
is between
eightplayed
and
tions
of “dun,
dun, dun”
realized that a dangerous
ennui Enrollment
had
appellate
briefs,
this
class
presents
a
in one or more negotiation sessions. It is during
fifteen
course
focuses
on the appellate
stunning
succession,
I placed check
creptthese
into client
my classroom.
I’d students.
required The in
good opportunity
students
to have
have taken the lessons
interviews
that I seefor
how
students
process
but, out of necessity,
with next
a review
of the
marks onbegins
the board
to “Rule,”
students to use an IREAC
structure
an openfrom
discourse
learn
from
“Rule Explanation”
andmembers
“Rule to
learned
writingand
the to
facts
in memorandum
briefs
trialRule,
process.
I have encouraged
other faculty
andand
methodology
(Issue,
Rule
their peers in a controlled setting. In
Application.”
Students
and
Explanation,
and
apply those lessons while collecting facts
and impres-Rule Application,
join me in the classroom
so the students
couldlaughed
gain from
addition, my targeted questions
clapped
as
they
followed
the
music
Conclusion)
for
their
legal
analysis
sions. What I learned was that the students were more
experiences in addition to mine. One visitor explains the
require the students to delve more
checktrial
marks.
and legal
writing.
Beginning
with
engaged
in
the
collecting
and
cataloging
of
facts
when
there
process
of preserving and
errormy
during
in order to mount an
deeply into the facts and the law than
We
listened
for about
twenty
orientation
the past August,
I had
alsoAnother visitor explains
was
a
question
and
answer
session
with
the
client
as
opeffective
appeal.
the process
ofminthey likely would, or could, have done
utes.
I
continued
to
place
check
urged students to usefiling
an IREAC
tem- This collaboration with other faculty marks
posed
to own.
handing
students
fact sheets.
the appeal.
on their
Best
of all, those
ideas I also saw an innext to each element of IREAC when I
plate I had proudly developed during
creased
in, and
improved, legal
analysis when
members and the discussions
regarding the trial process
did not interest
come from
me,much
but through
thought I heard one reflected in the
my first year of teaching the year
the
studentsdiscussion
were challenged
from the client in
often suggest details Fifth.
that I Then,
have never
experienced.
facilitated
amongby
thequestions
stureluctantly,
I checked
before.
dents
themselves.
the
counseling
session. I began to look for a means
by
Because
I
found
the
collaborative
work
interesting,
“Conclusion.”
By November I thought students
The
students
also
which
I could
bring
thebegin
clientlearning
into the first seemed
semesterbored
legal and skeptical
I was able
to
transfer
that
interest
to
my
first-year
students
The
students’
first
open
memoranabout the
how to class.
become
oral commuwriting
Theeffective
use of technology
seemedworth
to provide
a
and
their
efforts
in
dealing
with
both
legal
writing
issues
dum
was
due
that
Monday.
I
told
of IREAC, the method I’d now
nicators.
manyanswer
students,
oral
dispartial
andFor
exciting
to my
quest.
and,
eventually,
the
appellate
issues,
in
their
analysis
them to go home and composeand
their
promoted for three months.
cussion The
oftenclient
leadscounseling
to a bettercourse
under-had about the same
ownstudents
best “symphony.”
I suggested
discussions.
I found that
more willingly
and
I worried that I might
lose stustanding of the issues. The group conthey the
call appellate
it their “Symphony
(not
in me
for the rest ofdiscussed
number
of students as did a single section ofdents’
legal confidence
writing,
enthusiastically
brief issues #1”
when
I
ference also enables me to level the
Beethoven’s
not mine).
year if I didn’t actintroduced
quickly. I asked
so the number of students did not pose anythe
difficulty.
more appellate
practicesymphony,
into the course.
playing field for the students before
myself:
However,
in the legal writing course I generally
had“What
two or to do? What remedy?”
In summary,Everyone
the use ofcheered!
technology to bring clients
they actually begin drafting their final
Fortunately,
By
chance
I
saw
a
possible
soluthree
sections,
all
working
with
the
same
problem.
In
order
and
upper
level
course
experiences
intomy
theBeethoven’s
legal writing
appellate briefs. By omitting referFifth/IREAC presentation dispelled
tion
in
a
non-legal
source:
Beethoven’s
to
bring
some
of
the
realism
of
a
client
interview
into
the
classroom
makes
teaching
legal
writing
more
interesting to
ences to specific case names during
the ennui that had crept into my classFifth Symphony. I noticed the powerlegal
writing course,
I created
videoinof an interview,
me and for my students.
The opportunity to teach upper
students
see agaps
the conferences,
room. Each year, a similar demonstraful structure of the Fifth for the first
converted
the interview
to athe
digital file, and placed the
level elective courses tion
allows
mesubsequent
to reflect on
the interacwithout tape
having
their research,
with
classes
has protime. I also thought I heard each eledigital
file on a webpage.
Thisthe
gave all my legal
writing
other students
“give away”
tions
between
the
multiple
subject
matters
the
duced the same results. students will
ment of IREAC in the Fifth.
the students
answers.access
Moreover,
students
to exactly
the same are
information.IThey
could
law school
thisBeethoven’s
integration finds
its way into
Fifth/IREAC
decided
to makesee
theinFifth
the and howMy
to
make
significant
progress
required
review the interview as often as they liked and
they
the practice
of law. demonstration has thus become the
I wanted
basis
of could
a class presentation.
on their research and to begin formuheart, soul, mind, and music of my
to create an aura of mystery at the
lating their arguments in preparation
“best class.” u
beginning of the class. I brought my
The Small Group Progress
Conference
Upper
Level Experiences
12
THE SECOND DRAFT
meaning of the sentence and glue
the story. I wove in theme, audience,
words hold the working words togeth- point of view, and storytelling during
er–and on the board we analyzed
that first class. The exercise was “real”
some examples from Wydick. I then
for the students because it gave them a
told them to choose a paragraph from
chance to see the other side of a story
their own memo and to underline the
most of them already knew well.
working words, circle the glue words,
We spent the second class of the
and then lessen the number of circled
semester comparing and contrasting
words.
the description of facts in Judge E.
The genius of the exercise is in its
Gordon West’s trial court opinion in
simplicity. Novice law students, overMiller v. Amusement Enterprises, Inc.1
Rideout (far
(middle)
were
honored
whelmed by Chris
the complexity
of left)
legaland Laurel
withOates
the federal
Fifth
Circuit’s
en for
banc
2
being
founders
of
the
Legal
Writing
Institute.
Professor
Rideout
was
reasoning, find this straightforward
decision reversing Judge West. Judge
also honored
his service as West
editordismissed
of the LWIthe
Journal,
Legal
Writing.
exercise refreshing.
Their for
overloaded
suit Mrs.
Miller
Mimi under
Samuel,
LWI
webmaster
and
brains may not be able to conceptualbrought
the
Civil
Rights Act,
ize “nominalization,” but when told to holding
that
Fair Park,
a Baton
chair of
theFun
Website
Committee,
rid their papers of glue words, instinct Rouge
amusement
park, was not a
appears
at the right.
seems
to
take
over
and
their
nominal“place
of
exhibition
or entertainment”;
Omitting Glue Words
izations, passive voice, compound
thus her action could not be mainMary Beattie Schairer, Quinnipiac
constructions, and word-wasting
tained.3 He dispassionately described
University School of Law
idioms (well, most of them anyway)
the park as two and 3/4 acres of land
disappear.
with mechanical rides, an ice skating
“The glue words [exercise was] most
One other point, regarding editing rink, and concession stands. He devothelpful in the editing process and
onscreen. The concept of physically
ed one short paragraph to the incident
creat[ed] a better overall product.”
taking an editing pen to rework text
giving rise to the suit, stating that an
“The in-class sentence-by-sentence
on a hard copy was new to some of
attendant who mistakenly rented a
scrutiny of our memos was my
my students, as I had suspected. Thus pair of skates to a black child merely
favorite [exercise],[ because] it illusthe act of bringing a paper draft to
“retrieved the skates” and “informed”
trated a great method of reducing
class was a novel concept that in itself
her that the facilities were open to
excess verbiage in our papers.” These
sent home a message: print drafts to
“white people only.”
quotes, from this past fall’s 1L student
edit them.
The Fifth Circuit, on the other
evaluations, are referring to the workAn early draft of this article was
hand,
painted Fun Fair Park as a
ing words/glue words terminology
between “the ideal length . . . of 500
child’s
paradise. The court named all
and exercises from Richard C.
and 750 words.” After editing, I’m
the
major
rides and the delectable
Wydick’s Plain English for Lawyers. In
now down to 426. As they say, if I had refreshments available for purchase
a year when the Legal Writing
more time, it would be even shorter. u and noted the park’s advertising sloInstitute presented its fifth Golden Pen
gan, “Everybody come.” Moreover,
Award to Professor Wydick, I wanted
the court detailed the incident,
Keeping It Real
to include in this “Best Class” issue
describing how a manager had
Lori Lamb (below) wasGail
also Stephenson,
honored at the
2004
my own tribute to him.
Southern University
become involved, “snatched” the
AsstuTerry Seligmann
explained,
Lori
This year, I wasConference.
blessed with
Law Center
skates away, and “announced” that
“has
LWI
running
administratively for most of
dents who generally
hadkept
done
a lot
of
the park did not “serve colored.” The
analytical writing initstheir
undergradu20-year existence.” The heating system went down at the
court concluded its fact summary with
ate careers (the good news), but who
Law Center over the Martin Luther
a poignant portrait of Mrs. Miller’s
admittedly were used to stretching
King holiday break. No one was there
their writing to fill the minimum page
to notice as the building developed the daughter crying while the bystanders
“began to giggle” and “appeared to be
requirements of their undergraduate
chill of a meat locker. The following
amused.”
research papers (the bad news). We
Tuesday morning, the outside temperMany cases would have served
did in-class exercises in early weeks
ature was 41 degrees, frigid by Baton
the
purpose
of comparing and conon active/passive voice and base
Rouge standards. The students sat in
trasting
fact
summaries
told from difverbs/nominalizations, but nothing
the classroom dressed in coats, hats,
Miller was
ferent
points
of
view,
but
really seemed to click until I told my
and scarves; one claimed she could
Annesee
Enquist,
at center,
lunching
with
other
LWI
perfect
for
my
class
for
two
reasons.
students, a few days before a memo
her breath. I feared it would be my
members
before
the
award
ceremony,
during
which
First,
I
teach
at
a
historically
black
uniwas due, to bring a hard copy of their
worst class ever.
she
was
honored
as
one
of
LWI’s
founding
versity
with
a
commitment
to
social
memo-in-progress to class for some inWe had started the semester of
justice.
the case(Wake
was real
to
members. From
left:Second,
Laura Graham
Forest),
class editing. In that class, one thing I
persuasive writing by reading Jon
my
students because
it was
set in
Bratman
(Pittsburgh),
Anne, Chris
Coughlin
went over was the working
Scieszka’s The True Story of the 3Ben
Little
Baton
Rouge
and
many
of
them
(Wake
Forest),
and
Toni
Berres-Paul
(Lewis
&had
words/glue words terminology from
Pigs in our first class. Students who
spent
happy
childhood
days
at
Fun
Wydick–working words carry the
Clark).
had small children volunteered to read
reasons. First, by this point in the academic year, my students were comfortable with me and with each other.
Second, the issues arose naturally from
the subject matter of the problem. See
Lorraine Bannai and Anne Enquist,
(Un)Examined Assumptions And
(Un)Intended Messages: Teaching
Students To Recognize Bias In Legal
Analysis And Language, 27 Seattle U. L.
Rev. 1, 9-10 and 37-38 (2003).
2 Id. at 3-4.
3 Id. at 4.
4 See generally id. at 10-22.
5 See generally id. at 23-31.
6 Id. at 27-28.
2004 LWI Conference Highlights
THE SECOND DRAFT
21
starred Sandra Bookman, who had
“dog-napped” her dog show rival’s
prize-winning German Shepard from a
local kennel. I asked whether the students had created a persona for Ms.
Bookman. At first, some were embarrassed to admit how much they had
thought about Ms. Bookman, but once
the conversation got rolling, they had
all kinds of ideas, ranging from her
hair (“she has a bad perm”) to her
attire (“she has the typical Seattle uniform–jeans and a sweater–and she has
a million of the same sweater in her
closet”) and even to her aroma (“she
smells like cats”). After thoroughly
dissecting Ms. Bookman’s appearance
and personality, we turned to the main
character from our second memo and
had a similar conversation.
By now, the class was disarmed
and laughing, but curious where we
were going. We moved to the current
memo problem, in which the defense
had raised a Batson challenge after the
prosecution struck the only two jurors
on the panel who appeared to be
Muslim. While the first juror engendered little conversation, the second
juror, Antonio Jackson, was the subject
of much discussion. Although other
attributes were raised, the discussion
of Mr. Jackson centered on race. In
fact, the first comment was that he
was a large, imposing African
American man. Although his race was
never mentioned in the voir dire transcript, most students agreed that he
was black, and several said that he
looked like actor Samuel L. Jackson.
Now it was time to deconstruct
these images. Why, I asked, do most
of you think that Mr. Jackson is
African American? Well, I was told,
he attends a mosque; therefore, he is
Muslim. He doesn’t have an Arabsounding last name; therefore, he is a
convert. Many Muslim converts are
members of the Nation of Islam; therefore, he is black. We then moved the
discussion to a general exploration of
the bases of their beliefs about all the
characters. Students mentioned personal experience, second-hand information (i.e., my friend has a friend
who is Muslim, and she told me . . . .),
media, even name association (i.e.,
Antonio Jackson and Samuel L.
Jackson), and, of course, stereotype.
20
We discussed the relative weight of
these influences, recognizing the
increased reliance on stereotype and
second-hand information when personal experience is lacking. The point
here was to have students think not
only about these fictitious characters
but also about the assumptions and
inferences that they make about the
parties, the attorneys, and the judges,
whenever they read a case, and how
those assumptions and inferences may
color their views about and understanding of the cases.3
Next, we turned to language
choices.4 I gave the students a handout with the following instructions:
“For each set of words in brackets,
choose the most appropriate term.”
There were a series of approximately a
dozen sentences related to our current
problem, including the following:
The Court asked the panel members
whether any of them believed that
police treat [minorities – people of
color – non-whites] differently or
unfairly.
Mr. Aitkin, [an African-American – an
African American – a black – a Black]
juror, stated that he believed that he
was singled out for unfair treatment
based on his race.
First, the prosecutor excused [Ms.
Habib – Mrs. Habib], who is a [housewife – homemaker – domestic engineer – stay-at-home mother].
When they had finished, I
explained that I had used an intentionally ambiguous word in the instructions, and I asked them how they
interpreted “appropriate” when making their choices. In response, I
received every answer I could have
hoped for: “we need to be precise,”
“we should use what is currently popular,” “we should look at how people
describe themselves,” “we should try
not to offend anyone.” We then discussed (1) how to balance these goals,
(2) how to figure out which words are
precise and accurate, and (3) how to
know who we are trying not to offend.
To do this, we got fairly specific, looking at excerpts from the usage notes in
The American Heritage Dictionary of the
English Language, searching for websites that might offer clues, and running searches in respected newspapers
to see what they used.
Next, we tackled legal arguments.5
I gave the class a handout with 10
arguments raised by parties in the
cases that they had read for this
memo. For example:
Religious people in general tend to be
less likely to sit in judgment of others,
and therefore, are not “good” jurors
for the prosecution.
People who wear traditional religious
symbols such as crosses and Stars of
David tend to be more observant in
their religions than other people are.
When exercising peremptory challenges, attorneys should be permitted
to make inferences about potential
jurors based on their religious affiliation. Doing so is no different from
making inferences based on the jurors’
employment, level of education, or
appearance.
For each argument, we discussed
whether it was based in fact; if not,
whether it was based on bias or stereotype; and even if it was based on bias
or stereotype, whether it was a legitimate point for an attorney to raise.
In addition, we touched on issues of
professional responsibility such as
what to do when a partner or a client
asks a young attorney to make an
argument that she finds personally
objectionable.6
I consider this class one of my best
because we addressed a sensitive and
potentially difficult topic in an engaging way. By starting with a nonthreatening, even fun, exercise, the
students let down their guard.
Moreover, by discussing bias issues in
the context of their current problem,
they could see the necessity of confronting these issues and the need to
have tools to do so effectively. Finally,
it challenged me to come up with creative ways to present the material and
to handle a charged, but interesting,
class discussion among a diverse
group of students. u
I chose to raise these issues in connection with this memo for two
1
THE SECOND DRAFT
attractiveness.” Other students will be
you that while she is gone, to
quick to point out that it lacks the
attract customers, you should
apple’s “snackability” and its associaput new shipments of produce
tion with good health. Some will
in the store window. Before she
respond by noting that limes are the
leaves, she places a shipment of
Kirsten K. Davis, Arizona State
fruit of choice for margaritas, which
red apples in the window and a
University College of Law
can beSpecialist
associated with good times.
shipment ofof
russet
potatoes in a Writing
Filling up the Candy Jar: Advantages
a Full-Time
Others begin to see the importance of
bin in the back of the store.
It is in the areas of ambiguity that transforKim Baker, Roger Williams School of Law
encourage
first-year students to visit me context;Understanding
better what legal
if Cinco de Mayo is approachThe Grocer goes on vacation.
mations take place.
A first-year student thanked me recently
to The
discuss
their
writing. of
This initial
writing
demands, for
I have
able
ing,
the argument
thebeen
limes
in to
the
next
day,legal
a shipment
–Kenneth Burke
for
taking
the
time
not
only
to
help
him
visibility
pays
off
throughout
the
five
assess
writing
problems
in
context
and
window becomes stronger. And the
limes arrives.
Every year I face the same problem.
improve
hisstudents
writing but
also tothat
helpthey
him
days of orientation and into the first
to developcontinue
effective until
solutions.
I have
arguments
the students
My
new 1L
believe
build
confidence
thatinhelaw
could
year
as students
recognize
me and
more
time to spend
one-on-one
have
squeezed
everyinlast
bit of arguThen
I ask, “Okay.
Where
do we
will
bethe
learning
the law
school,
improve.
the nice
pat on the
interactStudents
with me in
the corridor,
sessions
assessing
not only
ment
out of
that pesky
lime specific
(and are
start?”
(who
have done the
and
everyBeyond
year, they
are relentlessly
ready
lunch!).
fairly
quickly
out that
back, thistoencounter
reminded
me ofthey reading)
lunchroom,
and
library.figure
Some students
skillsfor
issues
but also related writing
devoted
this myth.
“Answers,”
I end the
class byfrom
asking
we
are that
on our
way
toto
learning
thewith a
demand,
much
just how “answers!”
much better IYet,
practice
asto
a
claim
being
able
put a face
problems
stemming
ESLthe
or students,
“So,
where
do
the
limes
go?”
steps
of
legal
analysis.
Students
begin
their
dismay,
there
are nothan
answers
full-time
writing
specialist
I did to
as a
name made seeking help easier. Studentwriting anxiety. Writing research
Students
an “a-ha”writing
moment
here;
byencounter
definingstatistics
the issue
(do athe
limes go
be
found–“gray
dot the
legal
part-timer.
I oweareas”
my full-time
position
show
significant
suggestshave
that examining
difficulthe
limes
go
in
the
window–unless,
in
the
window?),
they
figure
out
the
landscape.
“It of
depends”
the typical
to the tenacity
our legaliswriting
increase in business from my part-time
ties in context and identifying the of
course,
they go in the back of the store
Grocer’s
“attractiveness”
rule,
and
answer
a “yes”
or “no”
director,toJessica
Elliott,
whoquestion.
finally
to full-time practice, considering the
source of the difficulty leads to
with
the
potatoes. There is no right
they
understand
that
two
cases
give
Frustration abounds.
convinced the administration and me
number of
students
per hour ratio.
behavior
modification,
not just rule
answer,
only
the possibilities of transguidance
on
what
“attractiveness”
My best class comes early in the
over a year-long period that being fullThe
increased
visibility
leads
the
reinforcement.
For
the
writing
advisor,
forming the lime into an apple–or
a
means. Here is where the real learnsemester when I attempt to demontime
had
many
advantages.
writing
specialist
to
become
part
of
the
this
translates
into
independent
student
potato–through
argument.
ing
begins.
strate to students that law school is
Prioranswers
to directing
legalembracwriting
school’s
rhythm
self-assessors
less dependent
on the
I find that students
are transWhenculture.
asked The
whateveryday
makes an
apple
not about
but our
about
program,
Director
Elliott
taught
legal
of
classes,
discussions,
chit
chat.
The
writer
advisor,
or,
eventually,
the
judge,
formed by the “Grocer’s Dilemma.”
“attractive,” students have many difing the ambiguities of the law, analyzwriting
at
a
program
with
a
full-time
things
that
make
a
school
tick
and
stick
partner,
etc.
To
solve
the
problem
of
They now have a concrete representaferent answers. Some say color.
ing all possibilities that arise in those
tion
of to
thereach
ambiguities
law pressayBeing
flavor.
others
say was
the
writing advisor,
experience
she
together.
partStill
of the
culture
how
more lawthe
students,
ambiguities,
andanmaking
arguments
in Others
and theirthose
role who
in navigating
those
association
between
andwriting
apples ents
sharedzones
with of
meuncertainty.
to illustrate practical
almost impossible
as ahealth
part-time
particularly
do not come
in
those
I invite
uncertain
waters.
They alsoIhave
a
(students
to see
that
them
into the
zones
of uncertainty
advantages.
She
referred
also to a
specialist.begin
I would
run here
in from
thewellto work with
me personally,
distribute
“catch
phrase”
to quickly
convey
known
andindeeply
through
an exercise
called
thehistory
comprehensive
analysis
of the
university
the lateingrained
afternooncultural
to hold
an e-mail
Writing
Tip of the
Week.this
This
purpose
to
one
another:
“Law
norms
can
affect
the
law–“an
apple
a
“Grocer’s
Dilemma.”
of writing advisors at law schools by
office hours. I did not know any of the
particular solution has been veryschool
is always about the limes.” This
day keeps the doctor away”). Others
The Grocer’s
Dilemmaand
is not
new;
Professors
Jessie Grearson
Anne
students, law school professors, or staff
successful. Not only do the tips reach a
recognize that the apple’s “portability” phrase has been widely adopted
The
Second
itEnquist,
has been
written
about
in
which quantifies their advanvery well, nor did I have time to get to
wide audience but students report a
among our students; it even once
and “snackability” can make it attracDraft as
well as in other newsletters
tages.1 This article1will build on the
know
them.
I
was
relating
to
individual
sense thatinsomeone
takesnewspaper!
the time to
the student
tive. Others say it’s all of these things appeared
and law journals. It has been
professors’
work
and
assert
two
reasons
students
only.
I
had
no
sense
of
the
think
about
their
writing
needs.
I also
My best class is my best class
combined. The potato yields similar
applauded for its ability to introduce
to
consider
a
full-time
writing
advisor
larger
picture,
the
mission,
the
strain
of
have
time
to
develop
handouts,
such as
because it represents a transformation
students to issue analysis, rule synthe- types of answers as to why it is “unateven
if you already
have a part-time
law school,
or the
highly
nature of one
streamline
the lengthytodocument
my to
students’
orientation
law
tractive.”
They
focus
on stylized
the potato’s
sis,
analogy
and distinction,
and the
one:
it
deepens
an
immersion
in
the
of
legal
writing.
explaining
TRRAC.
school—from
“answer
seekers”
to
dull
color,
irregular
shape,
lack
of
hierarchy of authority. It is an all-pur“legal
problem
solvers,”
ready
to
sweetness,
and
need
to
be
prepared.
culture
of
the
law
school,
which
As
my
visibility
has
increased
Having
a
part-time
writing
advisor
pose tool for introducing students to
the
students
see
During
this
process,
embrace
the
ambiguities
of
the
law.
u
deepens
of students’
and my immersion in the culture has
is advantageous to any law school. This
the
basicsunderstanding
of legal analysis
and writthat
the
meaning
of
the
“attractiveness
ing.
Yet,needs;
perhaps
it does
writing
this,what
in turn,
leads best
to is
deepened, my understanding of the
professional supports the legal writing
1 See Charles R. Calleros, Reading,
is ambiguous
and
that each
rule”
change
students’
the
more effective
andperceptions
long-lastingof
soluwriting
needs of law
students,
firstprogram particularly. Having a full-time
is a reasonof thehas
rule
interpretation
Writing
Rhythm:
A Whimsical,
purpose
tions. of a law school education by
years particularly,
evolved.
Early
writingand
advisor
integrates
this profesable
one.
Musical Way of Thinking about Teaching
makingParticipation
those relatively
abstract
purin the culture of our
each semester, before the crush of
sional into the fabric and mission of the
No one, single, universal “truth”
Legal Method and Writing, 5 Legal
poses
material,
tangible,
familiar:
law school
begins
with myand
widespread
the crowd clamoring to see me, I
school by supporting not only the legal
of a “legal” rule, you say? Who
Writing: The Journal of the Legal
students use what they know about
visibility at orientation each August. On
attend
the
legal
writing
class
of
writing
program,2but
also exam
knew?!?
Writing Institute
(1999);
Jane practice,
Kent
apples, limes and potatoes to learn
day one, while first-year students roam
Director
something
I washere.
career services,
student
scholarship,
and
And itElliott,
only gets
better from
Gionfriddo,
Using
Fruit to
Teach
about the transformative potential of
the
building
buying
books,
applying
for
never
able
to
do
while
part
time.
bar
preparation.
The
only
drawback
is
Students then get the chance to anaAnalogy, 12 The Second Draft 4 (Nov.
focusing on ambiguities and argua parking
getting their course
Attending
meintothe
deepen
needing
to refillE.the
candy
jarJessica
on my
lyze
whetherclass
the enables
lime goes
win- 1997);
Suzanne
Rowe
and
ments,
notsticker,
on answers.
schedule,
and browsing
through
my understanding
of legal
writing,
to
desk more
dow.
And they quickly
learn
that, like
Grocery to
Enciso
Varn,often
Fromnow.
Dilemma
exercise is
The Grocer’s
the
meaning
of the “attractiveness
Courthouse: Teaching Analytical Skills to
information
byand
the local
hear
what students
hear, and to “take
simple
to lead
takesChamber
one classof
1
placement
of the
the proper
rule,”
Law Students,
First-Year
14Enquist,
The Second
Jessie Grearson
& Anne
A
Commerce,
I sitwith
at a table
in the
middle
the pulse”
of their
writing skill
level,
period.
I start
a short
story.
limes
is
not
clear.
Some
students
will
Draft
14
(May
2000).
History of Writing Advisors at Law Schools:
of the hubbub greeting students as they
needs, and fears. This deeper undermake
masterful
arguments
about
theto
for a Grocer
who is
You
Looking at Our Past, Looking at Our
walk
by.work
I distribute
a handout
describstanding
enables
me to relate
better
lime’s
similarity
apple
bright
for vacation.
She tells
Future, 5 Leg. Writing (1999).
ingleaving
the service
of the writing
specialist,
students,
as welltoasthe
help
theminimcolor, shape, and overall “visual
“Take the Lime and the
From the Desk of the
Apple and Mix ’em All
Up”
Writing Specialist
answer questions about the service, and
THE SECOND DRAFT
prove their legal writing skills.
13
them get started practicing law.
After three or four of
the weekly classes,
one of my students
City and Long Island region reported
raised her hand and
the
highest average salary at $124,360,
said, “Oh, so it’s like we’re really
while
directorsthese
in theare
Northwest
and
lawyers–and
our clients!”
Great
Plains
region
reported
the
an
Yes! About that time, I noticed lowest
1
average
salary
at $74,000.
increased
interest
among the students.
During in-class drafting exercises for
pleadings,
students
anxious
for
Legal
Research
and were
Writing
Faculty
feedbackand
even
though
their work
Salaries
Other
Support
would
notaverage
be graded.
Theyfor
hadfulla lot
The
low salary
of
questions
about
the
on-line
materitime legal research and writing (hereinals, and
they asked
copies
of my
after
“LRW”)
facultyfor
base
salaries
rose
forms. When I realized that my stuin 2004 to $49,419 compared to 2003
dents were “getting it,” that this
figures of an average low of $48,931.
would help prepare them for practice,
However,
the average high fell to
I couldn’t help but think that this was
$59,395
from
average high of $60,198
my best class!an u
dents. I would draft exercises involving superheroes, Star Trek characters,
and even famous sports figures. The
The
result? Confused, disengaged students. My students just did not seem
Kristin B. Gerdy
areas. This is a change from 2003 when
to care very much about Mark
salaries
for directors and LRW faculty
“So It’s Like We’re Really
McGwire v. Sammy Sosa or Lois Lane v.
Note:
In the interest of conserving space,
were
higher
in suburban
areas,
is
Lawyers?”
Clark.
Rather,
they found
thebut
process
extensive
footnotes
to
the
survey
itself
have
been
consistent
with
data
from
2001.
Salaries
frustrating and unrewarding.
Linda C. Fowler, Southern University
omitted.
The data here comes directly from
were One
higher
fora directors
atago,
private
law
day
few years
I walked
Law Center
responses to specific questions and is presented in
schools
($88,258)
than
for
directors
in to teach a citation class, armed at
with
my latest
clever exercise.
was not
more
in the
Association
Legalfirst
Writing
public
law schools
($85,933).I Further,
This detail
spring
semester
wasof my
time
lookingdirectors’
forward salaries
to the class;
had an
Directors/Legal
Writing legal
Institute,
2004 Survey
average
were Ihighest
teaching advanced
writing
at the
uneasy
feeling
that, despite
efforts,
Southern
University
Law
Center. on
This
Results
(conducted
by Kristin
Gerdy)(copy
for
directors
in programs
with my
tenurethe
students
would
once
again
have
course
is
a
one-hour
class,
taught
durfile with author, as well as at www.alwd.org
track teachers hired to teach LRW
an adverseand
reaction
to citation.
As I
ing www.lwionline.org
the second year,).with a focus on
and
($100,700)
were lower
in adjunctwas opening the door to the classroom
client letters and pleadings. This is
taught programs ($97,353) and complex
I had an idea that I thought might just
also
the
last
required
legal
writing
For the sixth straight year response rates
hybrid programs ($92,898). Salaries were
work. The students had been working
class.
to
the ALWD/LWI Survey increased. A
lowest
in programs with part-time
on a closed memo assignment involvSouthern is one of a small number
record high 176 schools participated for
faculty
($86,000)
with LRW
faculty At
ing a statute
andorthree
state cases.
of historically black law schools in the
aUnited
93% response
rate
in
2004
(up
from
in
2003.
on
contract
($79,441).
For
LRW
that very moment I decided tofaculty,
introStates and the alma mater of
Regional
differences
for
LRW
92%
in
2003
and
83%
in
2002),
thanks
to
average
current
salaries
were
highest
if
duce
citation
to
them
by
having
them
many civil rights pioneers. One of the Keeping Students
salaries
reflect
the
same
trends
as
seen
the
cooperation
of
program
directors.
the
faculty
were
tenured
or
tenure-track
put
together
simple
citations
involving
reasons I was attracted to teaching at
Interested
Teaching
in
director salariesWhile
at the top
and
This
year’swas
poolthat
of so
solicited
($59,208)
and lowest
for closed
full-time
nonthe authority
for their
memos.
Southern
many schools
of our
Citation
I
had
them
break
into
small
groups
was
also thewill
largest
ever,
with
190
bottom, but the middle regions shift
tenure track faculty ($53,758).
graduates
open
their
own
law
and draft citations in both full and
Anna Hemingway,
slightly.
The highestWidener
averageUniversity
salaries are
schools
solicited
for information,
practices
upon graduation.
As many
short form.
I even
themIssues
try “Id.”
Schoolin
of the
LawNew York City & Long
of my students
will AALS
be, I was
a sololaw found
representing
all U.S.
Member
Staffing
Models
andhad
Status
The result?
Interested,
engaged
practitioner
for sixNon-Member
years before beginschools
and AALS
FeeIsland region, at an average of $66,500,
According
to the survey
re- students!
The
Second
Draft’s
call
for
submissions
ning
teaching
nine
years
ago.
I
know
Paying schools as well as the University with salaries in the Northwest & Great
sponses, most programs used full-time
By presenting citation in the constatedregion
“yourcoming
best class
be on
theWindsor
problems
associated
with being
in atmight
the bottom
of
in Ontario,
Canada,
the host Plains
non-tenure-track teachers (79 or 45%), a
text of their own memo problem, I was
analysis, research, persuasion, writing
out
there
alone,
trying
to
help
people
with an average of $38,500.
of the 2003 ALWD Conference.
hybrid
staffing model (59 or 34%), or
able to get the students’ full attention.
mechanics, or even citation.” A best
in areas such as family and juvenile
In addition to formal salary, 70
adjuncts
(19 or
11%) inin2004.
Six
They were
invested
the process
class on citation? Is that even possilaw, and feeling there is not a lot of
Legal
Research
and
Writing
Director
programs
provide
LRW
faculty
with
programs
used
solely
tenured
or tenurebecause they knew that the work
done
ble? Well, as it turns out, yes. For me,
guidance available.
Experience
and
Salaries
summer
grants
averaging
$6,911,
up
track
teachers
hired
specifically
totheir
teach
in class would help them write
one of my best classes was on the
What should I teach during this
The averagetodirector’s
a from
$6,748
in 65
LRW,
andatanother
memos
home. nine
Yet, programs
I did not used
have to
dreaded
topic
of programs
citation. in 2003 and
last opportunity
sharpensalary
their for
writ12-month
calendar contract
period
in it
$6,371
in 57always
programs
in a2002.
Further,
such
teachers
hybrid
programs.
worry
that I in
was
doing
the work for
I have
had
love/hate
ing and analytical
skills? How
will
them by giving
students
the right
2004
was $91,390,
uptoslightly
an
the
vast majority
(99teaching
programs),
pro- I
Twenty-eight
programs
reported
having
relationship
with
citation.
help them
the most
carry from
on the
answers.
I
knew
that
proper
citation
love
it
because
the
topic
is
rather
conaverage
of $86,586ofinSouthern’s
2003, $85,389
vides their LRW faculty with developassistant directors in 2004, up from 18 in
proud tradition
law in
formand
would
depending
onsalary
how
crete. funding
Citationaveraging
is one of$1,946,
the fewup
topics 2003
school?
2002,
and $81,636 in 2001. The average
mental
19 invary
2002.
The average
they
were
using
the
cases
and
statute
taught
in law
school
whichinthe
I took
the approach
these
director
reflects
a steady that
increase
of
from
$1,909
in 2003
andin$1,713
2002.
for an assistant director was reported as
thisinexercise,
in their compared
memos. Through
answer
students’
questions
not “it $70,659,
were my junior
associates
a lawIn
experience
over the
last fourinyears.
And
overto75%
of programs
(97) isprovide
with $63,111
2003
students
got
a
good
foundation
for
depends.”
On
the
other
hand,
I
hate
it
firm,
and
we
were
collaborating
in
2004, the average director graduated
funding for research assistants, with 76
and $54,176 reported in 2002.
citation
basics
because
they
worked
because, well, it is rather concrete.
representing
our19.43
clients.
a mock providing
from
law school
yearsI held
ago (comfunding for all reasonable
In 2004, there were more
client interview in which the class par- Citation is one of the few topics in law together to come up with the “right”
pared with 18.6 years in 2003, 18.1 years requests and 21 providing an average of tenured
directors
in 2003
(35 vs.
answers.
As for than
McGwire
v. Sosa?
I
school in which the answer to stuticipated, asking questions of the
in
2002,
and
17.55
years
in
2001),
taught
$1,475,
down
from
an
average
of
$1,574
26)
and
fewer
tenure-track
directors
deposited
that
exercise
in
the
recycle
dents’ questions really is “that’s right”
“client” as they would in practice. I
in
law school
12.74
(compared in
but
up from an average of $920 (16
vs. 22) than
in 2003.
In addition,
receptacle
on my
way out
of class. u
or2003,
“that’s
wrong.”
shared
formsfor
from
myyears
practice
with
11.7
years
in
2003,
11.4
years
in
in
2002.
10
directors
have
clinical
tenure or
The mechanical quality of citation
days–client interview forms,
2002,
and 10.9
in 2001),
and how
tenure-track
(2 more than
2003to
makes it a challenge to teach. The
timesheets,
etc.years
I showed
them
Teachingstatus
Students
How
Other
Variables
Related
tothat
Salaries
directed
at her current
law school
for
but the same as in 2002). About 36%
material
itself really
is not
diffimuch information
is available
on-line;
Receive an Assignment
be intimidatcult, Three
but theadditional
process can
variables
seemed of those responding were tenured or
7.82
yearsbar
(compared
withweb
7.2 years
in
our state
association
site has
Michael Higdon, William S. Boyd School
ing
to students
because
its meticuagreehelpful
as retainer
to
impact
LRW salaries
in of
2004:
law
2003,
6.9forms
years such
in 2002,
and 6.1 years
in
tenure-track including clinical tenure
of Law, University of Nevada, Las Vegas
lous nature.
the past type,
I have
spent
ments and letters of representation.
school
setting, In
institution
and
2000).
status (down from 40% in 2003 but
an unbelievable
amount of time trying consistent with 36% in 2002). Howfor thethe
local
All the
forms required
LRW
staffing model.
Regional
factors affected
My best class was a trial advocacy
to
come
up
with
innovative
techniques
on-line.
These
are
family
court
are
In 2004, salaries
were higher
for
average directors’ salaries in 2004 as in
ever,
(60 of 139)
the directors
class43%
I developed
and of
taught
this last
to make citation interesting for stusome
of
the
resources
that
will
help
directors and LRW faculty in urban
earlier years. Directors in the New York
whose
primary
is LRW
semester.
I putresponsibility
this class together
Highlights of the 2004 ALWD/LWI Survey of Legal Writing
ProgramsNext
Step
14
THE SECOND DRAFT
really
them into
the subject
that there might be
a quiz of some
he redrafts
his opinions
20 Using
to 25 times
conference,
focuses on the
use draws
of cooperative
and
Review, Describing
the Ball:
Teaching by
matter. Moreover, students genuinely
sort.)
and reads them out loud at least three
collaborative learning in the legal writing classroom.
Rubrics—Explicit Grading Criteria.
enjoy the class. The exercise gives
The students are instructed to
times before publication.
them their first sense of working
raise their hands if they know the
My students find it hard to believe
McElroy
(Roger Williams
University)
Research
Writingreally
Director
together,
of gettingrecently
away from Associate
the
answer to a givenLisa
question.
If less
that all and
the details
matter.
offertheir
to publish
her new children’s
Stephanie Vaughan
(Stetson) converted
is chair ofthem.
the He
competitive
law school environment.
than 13 (out of 20)accepted
studentsanraise
Justice Anderson
the once,
fall ofit2005
with
ALWD Model
Moot Court
Rules
Committee,
is not
students vs. themhands, then I put book,
a pointLOVE,
in theLIZZIE,
“sub- in For
explained
that the
Minnesota
Supreme
Albert
Whitman
The
work
is astudents
fictionalvs. the professor.
which will soon
a set
of sensible,
practical,
selves,
but
require
a specific
type of
Courthave
rules
tract time” column.
(Each
“point”Books.
is
picture
book
about a littleItgirl
whose
has them bonding
and pedagogically
sound
rules for
courtthat
is the
firstmother
time I see
binding
for briefs.
Hemoot
admitted
worth two minutes
of time
to be
as a class.
As duty,
an added
it is a
this might seem like a minor rule, but
added or subtracted
to posted
the time
I
been
overseas
on active
military
and itbonus,programs.
funSenator
class for
me before jumping into
he then asked the students to imagine
already owe them.)
If 13 or
more stu-by U.S.
includes
a foreword
Dianne
the abyss of merriment we all call
him up A.
lateZamperini
at night reading
a brief
dents raise a hand,Feinstein.
then they potentialProfessor Michael
(Golden
Gate
grading.
that
is
inappropriately
bound
in
a way
ly get a point in the “add time” colUniversity) has again won the John A. Gorfinkel
umn. If, however,Sharon
a student
raises
that
cuts
his
hands.
Now
something
Reich Paulsen (University of Minnesota)
Award for Outstanding Instructor. The graduating
For more information on this exercise, you that seemed like an arbitrary, picky
his/her hand, and that student tells
was appointed Vice-President and Chief of
class chooses the recipient of this prestigious
me the wrong answer when I call on
rule has a real life context.
may contact Chad at
Staff in the Provost’s office. Sharon was on the
award, which is Ipresented
during the commencehim/her, then I get double points in the
was particularly fond of his last
[email protected]. u
executive
committee
that
originally
recommended
ment
ceremony.
He
teaches
writing
along
“subtract time” column for that quescomment, whichlegal
went
beyond
legal
the
formation
of
ALWD
almost
a
decade
ago.
with
several
other
doctrinal
courses.
tion.
writing
advice;
it
was
good
life
advice.
All Rise
Having done this for several years,
He urged the students to take advanJulie Oseid,
University
Sarah
(Rutgers-Camden)
article,
Some of St. Thomas
Cliff Zimmerman
(Northwestern),I asmiled
fifteen-year
I’ve found that, for
mostRicks’s
questions,
tage of opportunities.
to
School
of
Law
Teach Reluctant Talkers to Talk About Law, is
veteran of legal
writing,
namedthat
Interim
between ten to 15 Strategies
studentstousually
myself.
I amwas
grateful
I took
raise their hands, forthcoming
which always
advantage
of theAffairs.
opportunity
to invite
inmakes
the Journal of Legal Education
Associate Dean
for Student
Cliff will
I really can’t call it “My Best Class”
for a lot of fun with
the
students
who
Justice
Anderson
to
my
class.
Oh,
(December 2004). The Pro
Bono Research Project,
either stay on in that position next year or returnI
because I didn’t teach the class. I can
are on the fence when
only
eleven
or
know
I can’t have aand
distinguished
designed and co-coordinated
Sarahcredit
and the
teach in the
Communication
Legal Reasononlyby
claim
for having thetogood
twelve hands are in
the
air.
judge
teach
my
class
every day, but I
Rutgers-Camden Dean for
pro
bono
programs,
was
ing
program.
sense to ask Minnesota Supreme Court
plan to invite a judge to visit my class
profiled in The PhiladelphiaJustice
LawyerPaul
Magazine
(Fall to speak to my
Anderson
A few sample questions
every year so I can repeat “My Best
2004). The Project pairs upper
Rutgers-Camden
Emily
class. level
Justice
Anderson spent 50
min-Zimmerman, Mitch Nathanson, and
(I usually ask 25):
Class.” u
students with public interest
practitioners
Libby White (Villanova) have been promoted to
uteslaw
with
my class offor
30the
students.
• Are reporters arranged chronoWithout a doubt, it was the best
the50rank of “Associate Professor of Legal Writlogi cally or bypurpose
topic? of completing a discrete legal research
Recognizing Bias in Legal
minutes
of
my
first
year
of
teaching.
assignment.
Also, Sarah recently taught a CLE
ing.” These promotions were the school’s first
• T/F: All appellate
court opinions
andthe
Argument
As you might suspect, Justice
formal set ofLanguage
promotions under
new standards
are published.seminar on legal writing for transactional attorneys to
Anderson
made
many
of
the
same
Mimi
Samuel,
Seattle
University
School
one
hundred
Philadelphia
government
lawyers.
and
procedures
that
their
faculty
adopted
earlier
• A case citation contains seven
points I emphasized all year. So
why
of
Law
this year.
things. Name 5 of them.
did I see the light in my students’ eyes
• In what reporter
would
find (Rutgers-Camden) was
Ruth
Anneyou
Robbins
that I see in my teenagers’ eyes when
Our first-year curriculum includes a
federal districtpromoted
court cases?
to Clinical Associate
Professor of Law, a
Program
News
someone else tells them something
I
class to help students explore some of
you find
• In what reporter
rankwould
that comes
with 405(c)
status.
Ruth
Anne
built
have been preaching? That old legal
the biases inherent in making choices
this case: 112 N.E.
543?domestic violence clinic from scratch,
The Case
of Law faculty changed the title
Rutgers’
writing adage–consider the weight
of School
about language and legal arguments.
• What is the meaning
thescope
abbreof
legal
writing
faculty
totried
“professor”
anddifferent
voted
doubledofthe
of thethe
school’s
initial
domestic
authority! In this case, Justice
While I have
this class
viation “Ex rel.”?
to
give
them
long-term
contracts
of
three
and
five
violence pro bono program,
and
co-authored
the
Anderson was binding, on point, and
ways, I was particularly pleased with
years.
attorney practice treatise in
New Jersey
with
was
Plus, dealing
Justice Anderson
current.
the results of this year’s class, which I
After the questions, I total up the
stories, a
captivating.
He
had
great
that
area
of
law.
The
faculty’s
decision
was
based
in
held in the spring semester, while my
additions and subtractions. (The
greatobsession,
delivery, and
a great presence.
For
the
first
time,
faculty
at Golden
Univerpart
on
her
teaching,
service,
and
scholarfirst
year
students
were Gate
working
on a
results vary, but normally only a few
It
doesn’t
get
any
better
than
that.
memo
problem
involving
an issueinof
sity added an
award
for Academic
Excellence
in legal
writing. Ruth Anne also completed the
minutes are eithership
added
or subtractmen-Writing
Justice
religious
discrimination
in jury selecto the fourteen
other student
edition
her book, New
JerseyAnderson
Domestic started byLegal
ed.) I go over thesecond
answers
at theofend,
1
tioning
Bryan
Garner’s
division
of the
tion.
achievement
awards
given to graduating students.
Violence
Practice
usually to a chorus
of “Oh,
yeah”and
to Procedure, (2d ed. N.J. Inst. of CLE
legal writing process into three parts:
At the outset, I explained that we
the ones the students
missed.
I use
2004),
that she
co-wrote with a family court judge
brainstorming (the mad scientist part), would explore the biases that all of
the game questions
as
a
springboard
Director Sue Liemer (Southern Illiniois Univerand with an attorney who was her former student.
organizing (the architect and builder
us–students, faculty, lawyers, and
for the rest of my Finally,
discussion
sity) announced
that after three years of considerRuthonAnne is soonpart),
publishing
an
article,
and creating (the artist part).
He judges–bring
to our view of legal
andwith
I’vePrint:
always
Reporters and ALWD,
ing
school
writing
requirements,
the faculty
Painting
Incorporating
Concepts
of
Typographic
then explained that judges write opin2 But I also told the students
problems.
found that class participation–both
in
adopted a “Writing
the not
Curriculum”
rule
and Layout Design into the Text
Legal
Writing
Docuionsofnot
only
because
of stare decisis,
that the Across
class was
about being
answering and asking questions–hits
the Curriculum
Committee.
The
rule
ments, 2 J. ALWD 108 (2004).
but because writing is the best proposed
way to by“politically
correct” or about telling
its highest level of any prior class.
requires
to
complete
a
writing
assignment
test the soundness of reasoning.
By students
them what they should or should not
Even though students come into
think
writing,
the drafter
iswas
forced toin
every
course,
that assignment is returned
Sophie
Sparrow
(Franklin
Pierce
Law
School)
thinkand
or say.
class uninterested and glossy eyed,
about
thehad
issues
and make surewith
everythe
instructor’s
feedback.
recently
awarded
tenure.
She
also
an
article
To
start,
we returned to our first
“Add Time/Subtract Time” engages
thing holds
together.
He told us that
CONTINUED
PAGE 20
which
of the year, ON
memo
problem
published
recently
in
the
Michigan
State
Law
them in a form of active learning that
THE SECOND DRAFT
19
very careful about not making any fast certs in the park adjacent to Mr.
Wilson’s home. How can he get Mr.
movements because the turkey has
Baldwin to stop? He must get an
very keen sight. The hunter has to
injunction. How can he get an injuncknow how to use his shot gun so he
tion? He must prove that the concerts
can aim correctly and hit his target.
are a nuisance. How can he prove that
Otherwise, he can harm another.
Similarly, the legal writing student the concerts are a nuisance? He must
has to know how to use his tools. Our prove the elements of nuisance. How
can he prove the elements of nuitools are our books, our pens, and our
Publications
and sance?
Promotions
He must identify each element,
words. We have to
practice so we can
write good briefs to defend our clients. explain what it means, and show how
Your mouth is a weapon, Bill said, and the circumstances illustrate the element. How can he do that? He must
you can use it to help or hurt somefirst show that the concerts cause hurt
one. For example, one word from
or damage. How can he prove this
your mouth can take a child from his
first element? He must define it.
mother. A stroke of your pen can put
a man behind bars for many years. Or, Then he must illustrate it using case
law. Then he must show how Mr.
your word, your brief, and your arguWilson’s situation is like the examples
ment can win a case. So you have to
in the cases. Then he must conclude
use ethics in your practice of the law.
that Mr. Wilson satisfies the first eleThe class was mesmerized.
ment. And so on.
Students kept practicing, and the hat
Next, we chart what the defendant
game became one of my best oral
wants. He wants to continue putting
arguments class. And, after that, I
always used Bill’s talk to introduce my on concerts in the park. How? He
must convince the court not to grant
ethics lecture. u
the injunction. How? He must show
that the concerts are not a nuisance.
Working Backwards to
How? He must work through the eleGenerate Arguments
ments of nuisance, showing that the
Deborah Mostaghel, University of Toledo
concerts do not fit the definition and
College of Law
are unlike the case law examples.
Working through each side’s arguDuring the early stages of writing
ments in these reverse flow-charts
their appellate briefs, students thrash
forces students to identify every step
around under a load of material they
in the argument. Students see graphidon’t know how to control. Between
cally where the two sides’ arguments
the many facts and the masses of
mirror each other and where they
research, they often worry they will
don’t. These non-convergences are the
miss important arguments. I now
sources of counterarguments. For
schedule a class to show students how instance, Mr. Baldwin says that the
to take control. By using “ends-means concerts comply with city ordinances.
reasoning,” an idea I first came across
Students must find Mr. Wilson’s refutin The Legal Writing Handbook, § 9.6.1.,
ing argument, the rule that something
320 (3d ed., Aspen 2002) by Laurel
lawful can still be a nuisance. Further,
Oates, Anne Enquist, and Kelly
students notice that Baldwin has few
Kunsch, I show students how they can good legal arguments. He must make
generate arguments by reasoning
policy arguments, or his side of the
backward from the result they want to chart will be fairly empty. We did not
reach.
need to make policy arguments for
I illustrate by using the last office
Wilson because he had strong factual
memo of the fall semester. Working
and legal arguments. This is an eyebackward, we identify each step that
opener for students. They see a conour client must prove to attain the
crete example of the different types of
relief he desires. Our goal is to find
arguments that can be made and realour client’s every argument.
ize the importance of thinking through
On the board, we chart what our
their opponent’s arguments to make
client, Mr. Wilson, wants. He wants
their own side’s arguments more comMr. Baldwin to stop putting on conplete. For example, when we charted
N EWS
18
Mr. Baldwin’s policy argument that
the community needs entrepreneurs,
students realize that they can strengthen Mr. Wilson’s arguments not only by
refuting Baldwin’s policy argument
but by incorporating a policy argument specifically for Wilson.
Students and I both enjoy the
class. Students report that they make
use of the reverse engineering procedure to help them find arguments and
create some order out of the chaos of
the early phases of drafting the appellate brief. u
Add Time/Subtract Time
Chad Noreuil, Arizona State University
College of Law
It’s the day they turn in their first
memo assignment. Yawning typically
precedes a wave of uninterested
stares. Ugh. We’ve all been there, and
we all know it can be a tough class in
which to get anything accomplished.
Not a likely candidate for my best
class, and maybe it is not my very
best, but it is one of my best early
classes in the fall semester.
Let me preface this by noting that
I am notorious for going over the
allotted class time by five or ten minutes pretty much every class. I always
tell the students that I will give them
back any time that accumulates some
day later in the semester (which does
a great job of minimizing the rustling
as the end of a class draws near).
After the memo assignment is turned
in, I tell them that we’re going to play
“Add Time/Subtract Time.”
How it works
I write out two columns on the
board–one indicating that I will “add
time” to the total I already owe the
students and one indicating that I will
“subtract time” from the total I owe. I
then explain that I will ask a series of
questions based on the assigned reading for the day’s class. (The assigned
reading for this class is their first introduction to Reporters and ALWD.
Because we all know students rarely
read any assignments the day a memo
is due, I strongly encourage them to
read before this class, even hinting
THE SECOND DRAFT
because I wanted to make it easier for
my students to make the transition
are not
tenure-track
(up from 40%
from
lawon
school
to practice.
in To
2003).
accomplish this goal, I first
introduced
students
to the
wide are
LRWthe
faculty
in most
programs
range
of legal documents
beyond
on short-term
contracts with
60 onthe
1basic
memo
and
brief
complaints,
year contracts, 24 on 2-year contracts, 36
answers,
motions,
oppositions,
on contracts
of 3 years
or more,and
20
discovery
documents
that
have ABA Standard 405(c)first-year
status,
lawyers are often called upon to draft.
another 8 are on ABA Standard 405(c)
However, in my experience, the
status track, and 24 are on tenure track.
biggest problem first-year associates
The
majorityhow
of those
face isoverwhelming
simply not knowing
to on
contract
no cap (105
or
receive
anhave
assignment
fromofa115
senior
91%,
which
is
consistent
with
the
2003
partner.
numbers
of of
110their
of 121
or schedules,
91%).
Because
busy
At
74%
of
the
reporting
lawa very
legal employers often do not do
good
job the
of giving
assignments.
Many
schools
program
directors have
a
ofform
us remember
leaving
a partner’s
of “Professor”
in their
official
office
having
little idea
of what
exactly
title (106
of 143).
“Director”
is the
next
we
had
just
been
asked
to
do
or,
even
most common title (68 or 48%). For
worse,
thinkingmany
we knew
what form
to doof
LRW faculty,
have some
only to discover upon completion that
“Professor” in their official title (84 or
our boss wanted something complete65%), many are “Instructors” (35 or
ly different.
27%),
with “Lecturer”
being
thetonext
To teach
my students
how
most
common
title
(17
or
13%).
receive an assignment, I informed the
The
students
onvast
the majority
first dayof
ofdirectors
class that
on facultywould
committees
as voting
allserve
assignments
be given
orally.
(127 orthe
89%).
For LRW
I members
then instructed
students
how to
receive
oralinassignment.
First,
faculty,an
those
98 (76%) programs
students
were
told
they
must
always
serve on faculty committees with
91
listen
to
what
the
partner
says
and
(71%) programs affording voting.
The
write
sufficient
notes (106
so that
they may
majority
of directors
of 142)
also
recall
the
information
later.
Of
course,
attend and vote at faculty meetings with
listening is key and note taking should
7 non-tenure track directors voting on
never get in the way of actually hearall matters and 39 more voting on all
ing what the partner is saying.
but hiring and promotion. These voting
Second, the students were instructed
in over
addition
the 51and
tenured
torights
look are
back
theirtonotes
ask
and
tenure-track
directors,
who
were
about any obvious questions that
may
assumed
to have
rights. the
have
arisen.
Mostvoting
importantly,
LRW
faculty
vote attofaculty
students
were
instructed
never
leave
the partner’s
office with
until31
they
meetings
in 72 programs
of
had
answers
to the
following
questhose
programs
affording
voting
on all
tions:
matters. At 44 more programs, LRW
5.
If being asked to draft something,
does the partner have a sample of
Curriculum
how she likes such documents to
Virtually all writing programs
look?
6.extend
Is there
for theaveraging
case, and,2.27
if
overa2file
semesters
so, hours
may you
seefall
it?and 2.19 hours in
credit
in the
7.theWhat
client billing
spring.isInthe
addition,
42 programs
number?
have a required component in the fall
of the second year, averaging 2.0 credit
Subsequently, whenever I gave
hours.
assignments in the class, I would leave
Almost all LRW courses are
out some key facts as well as the
graded
grades
that
are included
answerswith
to the
above
questions,
thusin
the students’
GPA (146
programs).ask
Most
forcing
the students
to explicitly
programs
grade
at
least
some
assignfor the information, which they often
mentsto
anonymously
(98),I but
73 proforgot
do. Although
allowed
stugrams
do
not.
Additionally,
146
dents to ask questions later on, proI
would
only those
questions
grams answer
require rewrites,
with
55 of those
that
I had not
already
answered
programs
requiring
rewrites
on allin
class.
Predictably,
the students
assignments;
67 programs
grade initialall
lyrewrites;
hated this
method
of
giving
assign37 grade only the rewrites; and
ments.
Byonly
the the
endfinal
of the
semester,
25 grade
drafts.
they still were not that fond of it.
The majority of programs integrate
Nonetheless, by the end of the semesresearch and writing instruction (141
ter, the students were routinely asking
programs).
research
and
getting At
all 85
theschools,
relevantlegal
informais
taught
by
LRW
faculty.
At
42
schools,
tion while receiving the assignment.
it
is
taught
by
librarians.
At
49
schools,
Knowing how much easier my law
LRW faculty
and librarians
legal
practice
was once
I was ableteach
to aderesearchunderstand
in combination,
22
quately
whatand
myatbosses
expected
of me, I assistants
feel that this
schools teaching
and was
othermy
best
class.
u
students are responsible for teaching
research.
addition
to their
traditional
The In
Law
Firm
Experience
LRW faculty, 44 law schools employ a
Susan Kosse, Judith Fischer, and Kathleen
full-time
part-time
writingSchool
specialist,
Bean
of theorLouis
D. Brandeis
of
and
121
schools
offer
an
academic
Law, University of Louisville
support program.
The most common writing assignBackground
ments during the 2003-04 academic year
This
allmemoranda
three legal (170),
writing
profeswereyear
office
appellate
sors
at
the
University
of
Louisville
briefs (142), pretrial briefs (97), and
assigned
the (92).
McCreary
County
vs.
client letters
The most
common
ACLU
of
Kentucky
Ten
oral exercises were appellate arguments
Commandments
case, which
is cur(138), in-class presentations
(62),
and
rently before the United States
faculty members attend, but do not
pretrial motion arguments
(56).
Supreme Court.1 The actual case
What
exactlyon
hasthe
thescope
partner
1.vote.
Reporting
of their
The most common methods of
involves two courthouses where the
asked you to do?
voting
rights, 120 survey respondents
commenting
on papers
counties displayed
the during
Ten the 2003A partner may ramble on about
reported that they do vote on curricular Commandments.
04 academic year were
commentsthe
on the
We modified
research for a motion, but does the
matters
at
faculty
meetings;
however,
24
paper
itself
(169),
comments
during
case to focus on only the McCreary
partner want you to just do the
respondents
dotonot.
conferences
(143), comments
at the end
Courthouse
display, which
alsoFinally,
write when
the asked County
research or
whether
they vote regularly when
of the paper
general
feedback
Commandments
the Ten
evolved
from(129),
motion?
to thetoCommandments
sur123 survey
respondents
addressed
the class (124), grading
2.allowed,
How much
time can
you spend on alone
rounded
by
patriotic
and
historical
answered
affirmatively
with
only
eight
grids
or
score
sheets
(104),
and
feedthis project?
students
provided
documents.
We
that
they
do not
vote reguback memos addressed to individual
Can you
use
Lexis
or Westlaw?
3.reporting
with
copies
of the Amended
When does the partner expect to
4.larly.
students
(100).
see your draft?
THE SECOND DRAFT
Consolidated Complaint, Answer, two
hearing transcripts and one affidavit
that we drafted, and the lower court
Theleading
most common
teaching
opinions
up to the
Supreme
activitiesgrant
and the
average amount
of
Court’s
of certiorari.
Students
were
from
looking
the
time prohibited
spent in each
activity
wereatlecture
briefs
or using an
any
of theofwork
prod(159 spending
average
32.8%),
uct
from
the
real
case.
questions and answers and class
Because(154
the spending
case involves
our of
discussion
an average
state,
the
students
were
strongly
23.6%), group in-class exercises (147
invested, and they avidly read and
spending an average of 17.99%),
followed news reports about the
demonstrations (135 spending an
McCreary County Courthouse controaverage
of 11.67%),
individual
in-class
versy. The
timing was
perfect because
exercises
an average
of
the
actual(131
case spending
was argued
before the
11.41%),
and
in-class
writing
(115
Supreme Court just days before our
spending final
an average
8.74%).
students’
briefsofwere
due and
LRW
programs
continued
to use
before the students made their oral
arguments.
technology to improve and supplement
The
Class 44 programs have web
respondents,
teaching in 2004. According to survey
pages, down from 56 web pages reIn an
to help
students
ported
in effort
2003 and
64 web
pages imagine discussing the case in a law firm
reported in 2002. Class e-mail or listserv
setting, we invited two attorneys assocontinued to be popular during the
ciated with the case to meet with our
2003-04Frank
year with
146 programs
using
classes:
Manion,
who wrote
an
them
with
a
4.28
average
satisfaction
amicus brief for the American Center
rating
a possible
5). Other
for
Law(out
andofJustice
on behalf
of the
technology
was Friedman,
reflected inwho
77
County,
anduse
David
programs with
course web
with a
represents
the ACLU.
Priorpages
to the
meeting
withsatisfaction
these attorneys,
3.67 average
rating, stuand 97
dents,
in small
petitioners
programs
madegroups
use of of
electronic
and
respondents,
met
together
and91
“smart” classrooms (compared with
drafted
their
questions.
We
then
programs in 2003 and 68 programs in
e-mailed
thea 4.10
questions
tosatisfaction
the
2002) with
average
attorneys.
rating.
On the night of the meeting with
As of the time of the survey, 57
the lawyers, all students were present
programs
plan to teach the ALWD
in the room when the students “repreCitation Manual
onlyCounty
for the 2004-05
senting”
McCreary
(in favor of
academic
year,
while
89 programs
the Ten Commandments
display)plan
to teach
the questions
Bluebook only;
18Manion.
plan to
asked
their
of Mr.
teachthe
both
methods,
4 plan to leavethe
the
Then
students
“representing”
choice (opposed
to each teacher,
3 either
plan
ACLU
to theand
display)
asked
their
questions
of Mr.
Friedman.
to teach
a different
system
or are The
students
each
played
the
role
of a will
undecided as to which system they
“junior
associate”
consulting
with
the
teach.
“senior
partner”
on
the
case.
In
the
The majority of LRW faculty say
front of the room, we had a desk set
that they have a large degree of acaup with office props. Students were
demic freedom with regard to curricular
called down one at a time to ask the
choices. For instance, faculty in 160
“senior partner” questions.
programs
that
they about
had thethe
things
One ofreported
the great
authoritywas
to choose
change their
legal
evening
that theorstudents
on the
researchside
andgot
writing
textbooks
(such
ACLU
to hear
the other
sideas
citationabout
manuals)
consult
the and
case,their
andlegal
vicereversa.
search
and writingisteaching
methods
This
opportunity
one they’ll
proba-
ofPAGE
the 16
bly never have in CONTINUED
practice. AllON
students seemed very engaged,
15
tank led to the failure of multiple sys-
get some coffee goin’, too, someone.”
And they figured it out, using the
peril,
and
leading
to
the
second-most
cover
from a flight plan, some duct
Continued
from page
15
and the sound
of laptop
typing was
famous
quote
of
the
early
space
era,
tape,
and
some
for
(such
as lecture,
small group
exercises,
writing course
andbags
1.36intended
non-LRW
amazing!
This student
comment
sums program, 12% on service, 11% on
1
urine
output.
They
saved
the
astro“Houston,
we’ve
had
a
problem.”
up thelecturers,
students’
reactions:
guest
joint
teaching), while
scholarship, 5% on academic support,
courses in subjects ranging from
nauts. appellate advocacy to feminist
Yes,on
a problem.
A big one. One
only 6 did not. Slightly fewer programs
and 9%
“other” activities.
advanced
I like this example because it
for which aeronautic engineers were
increase
my
Q&Atohelped
have the “The
authority
choose
or change
During the 2003-04 academic year, jurisprudence.
LRW faculty members
brings to life several concepts that I try
not prepared, despite all their theoretieach side’s
their legalunderstanding
research and of
writing
exam
the “average” director taught 32 entryalso teach upper-level courses (98 or
cal planning and thinking and training to reinforce throughout the year. First,
and positions
from a
methodsstrategies
(such as essay,
short answer,
level
students 2.9 hours per week using 76%).
These courses are both upperpreparation matters. The ground crew
before the mission ever began. All of
practical, real-world point of
bluebook, “problems” requiring a
3.32
major and in
4.25
minor assignments,
level
(47)
and non-LRW
had LRW
done courses
multiple
simulations
to prethe engineers
Houston,
however,
view. The answers the attorneys
written memo
or
brief
to
be
written)
read
1,218
pages
of
student
work,
and
courses
(85).
These
courses
are taught
gave were candid and honest, and shared a common goal: They were not pare them for systems failures, and
(151 programs),
whileme
9 did
not.and
And
held
37.6
hours
of conferences
both
during
the regulartype
academic
year
while
this particular
of failure
going
to lose
their
astronauts. during
Like
really helped
frame
focus
154 programs
have the authority
to I feel the
fall semester.
The spring
semester
during separate
summer
wasand
unanticipated,
they
were able to
lawyers
representing
real clients,
they (79)
my arguments
in my head.
choose ormuch
change
types about
of legal
workload
was creatively
comparable.
sessions
(65).
use their
preparation to achieve a posihad to think
to These
save the
moretheir
confident
our
tive result.
you’ve
onlyLRW
got
brave men
were,are
quite
literally,
research position
and writing
andwho
averages
all compaBesides Second,
classroom
teaching,
nowassignments
than before I(such
walked numbers
what
you’ve
got.
As
attorneys,
we
lost
in
space,
200,000
miles
from
Earth.
as lengthinto
of assignments,
subject
area,
rable
with
those
reported
for
the
2003
directors
and
faculty
members
are
class last night. I look forwould engaged
love to have
a case perfectly
BecauseDirectors
the astronauts
knew
howof
to
to applying
responses
appellateward
or trial
brief, duetheir
dates),
while survey.
spent an
average
actively
in academic
scholar- on
point,
one
that
says
without
ambiguity
fly
an
aircraft
but
not
how
to
fix
one,
to my brief. Thanks!”
11 do not.
46 hours preparing major research and
ship. For 52 or 37% of directors,
there
that our client wins. Such a case is
they
were
totally
dependent
on
the
The largest degree of differences
writing assignments and 50 hours
is an obligation to produce scholarship.
rare, however, and we’re more often in
Houston ground crew to get them
All of usfreedom
would highly
recomin academic
reported
by survey preparing for classes in the fall and
For 23 there is no obligation, but there
the position of having to persuade the
As
I
discuss
the
problem
home
safely.
mend this project.
Even
the case
respondents
involved
the iflevel
of is
comparable
time
inApril
the spring.
iscourt,
an expectation
they will. For LRW
using available authority as well
facing
NASA
on
13,
1970,
stunot as high profile, having real attorcontrol over final decisions on proIn
the
2003-04
academic
year,
the
faculty,
there
is
an
obligation
in 20
as a heavy dose of
persuasion
in the
dents are able to make the analogy for
neys meet and brainstorm with the
posed
curricular
changes.
When
asked
“average”
LRW
faculty
member
taught
programs
to
produce
scholarship,
form
of
analogy
and
distinction,
that
themselves:
The
astronauts,
the
students is a unique and unforgettable
who
has
the
final
authority
to
adopt
or
45
entry-level
students
3.6
hours
per
encouragement
to
produce
scholarship
our
client
can
and
should
win.
We
“clients,”
were
relying
completely
on
experience. u
reject recommended changes in methweek
using 3.23
and 4 minor
inhave
29 programs,
and [a
ansomewhat
expectationhelpful
to
to make this
the expertise
ofmajor
the ground
crew, the
ods
and
scope
of
teaching
in
the
assignments,
read
1,554
pages
of
student
produce
scholarship
in
7
programs,
case]
fit
into
this
[our
client’s
facts]
1 Subsequent to writing this article, the
people in the advisory, “attorney”
usin’72
nothin’
but that
[allno
of such
our anarole.2 and held 48 hours of conferrequired
legal research
writing
work,
while
programs
impose
United States
Supremeand
Court
decided
lytical
and
persuasive
writing
skills].
The
best
part
of
the
analogy,
howprogram,
29
responded
that
the
dean
or
ences.
Again
this
past
year,
classes
were
obligation
or
expectation.
The
vast
this case.
Last,ofof
course, when
under
ever, comes
later in range
the movie.
deans had such authority; 7 reported a
within
the maximum
recom-After
majority
respondents
(150we’re
of 154)
time
pressure,
when
we’re
trying
explaining
to
the
students
that
the
faculty committee; 49 reported the
mended by the ABA Sourcebook on Legal
report that they have the authority toto
Saving the Astronauts
find just
righttheir
analogy,
when we’re
only
way
for
the
astronauts
to
make
faculty at a full faculty vote; 68 reported Writing Programs. This compares with the choose
or the
change
scholarship
Lisa T. McElroy, Southern New England
shouldered with the responsibility of
it back to Earth was to move into
the legal writing director; 40 reported
prior year in which the “average” LRW
topics (such as legal writing topics,
School of Law
saving a client’s life and livelihood, it
another part of the spacecraft, the
the
legal writing
a whole;
faculty
member taught 44 entry-level
pedagogy
topics, doctrinal topics).
Throughout
the faculty
school as
year,
we and
lunar module, I then show them the
never hurts to get the coffee goin’. u
14
reported
that
someone
else
had
the
students
3.6
hours
per
week
using
3
emphasize one consistent theme:
movie clip in which the ground crew
1 Neil Armstrong’s,
ultimate
on such lives
matters.
major
3.5 minor
assignments,
read
Gender
Highlights “That’s one small
Because authority
we hold clients’
and
had toand
figure
out, under
time pressure,
Consistent
earlierleap
surveys
step for a man, with
one giant
forand
livelihoods in our hands, a lawyer’s
how to make the square carbon dioxpublished
reports
gender disparity
in
mankind,”
uponoftouching
down on
job requires dedication, competence,
scrubbers on the command modDirectors and faculty members in ide
legal
research and writing
the moon
on July
20, 1969,
and diligence. To an attorney, a legal
legal
academia,
the 2004
surveywould
reports
ule side fit into the round air filter on
2 wellprograms
do routine;
much more
thanitattend
to administrative
tasksonly
and
as thelines.
most
probably qualify
may be
to a client,
problem
the lunar
module side, using
differences
along gender
known.
is likely
be life-altering.
the spacecraft.
the
onevery
boardaspect
Female directors earn less than
teachtoclasses.
They areWhat’s
involved in items
nearly
of their In
law
2 For a far less dramatic, but still
more, while law school teaches stuwords of the flight director in charge
male
directors
when measured by12schools
andtheoretically,
traditionalthey
academic
life.
instructive,
how the
will
dents
to think
of the Apollo 13 mission, “I suggest
month
salariesexample
($90,382offemale;
$94,500
ground crew had to “lawyer” from
learn upon graduation that law pracyou gentlemen invent a way to put a
male); less than 12 month salaries
the ground, see pages 8-9 of the annotice is anything but theoretical.
square peg into a round hole.
($82,834
female; $102,278 male); and
Workload
1,561 pages of student work, and held
tated transcript of the real Apollo 13
An effective way I have found to
Rapidly.”
salaries
reported
Directors
and
faculty
members
in
51
hours
of
conferences—a
comparable
“problem” at combined ($85,773
drive this message home is to show a
And the engineers responded,
female;
$92,094 male, a 12% difference.)
legal
research
and
writing
programs
do
workload.
LRW
faculty
spent
an
average
http://www1.jsc.nasa.gov/er/seh/ap
clip from the movie Apollo 13 early in
dumping everything available on the
(Salaries
reported
in 2003
had combined
much
more than
attendjust
to administrative
of
34 onto
hoursapreparing
major
research
ollo13.pdf.
In the
transcript,
the edias we’re
the second
semester,
craft
conference
room
table.
average
of
$82,273
female;
$93,774
tasks
and
teach
classes.
They
are
and
writing
assignments,
55
hours
tor
notes,
“Another
major
event
...
beginning to learn persuasive writing
“OK, people, listen up. The people
male,
a
12%
difference,
while
2002
had
involved
in
nearly
every
aspect
of
their
preparing
for
classes
in
the
fall,
and
threw
a
usually
cool
and
calm
astrotechniques. As you may remember,
upstairs have handed us this one, and
Apollo
naut into averages
a mild panic
. . . [anfemale;
taking
Apollo
13 was
real mission,
of $79,806
law
schools
and atraditional
academic
slightly
lesscome
timethrough.
in the spring.
we gotta
We gotta find combined
to file his In
[f]ederal
13 astronaut]
place in April 1970 (long before most
a wayIntoaddition
make this
[holdinginup
$87,790
male, aforgot
9% difference.)
the
life.
to teaching
thethe
[i]ncome
[t]ax return
[and realized
it
of ourInstudents
evenspent
a gleam
square cartridge]
fit into
this directors
[holding range
of salaries
paid, female
directors’
2003-04,were
directors
35%inof required
LRW program,
many
in
space].
‘How
after
he
was
already
their
parents’
eyes).
While
the
Apollo
up
the
round
one]
usin’
nothin’
but
salaries have a wider range than males’
their time teaching in the required
taught courses beyond the first-year
do I apply
for an extension?’
he asked.
13 spacecraft
intended toduties,
land on
that [pouring
theThey
usable
materi($52,000
to $156,000
female; $52,000
to
program,
28%was
on directorship
program
(86 or out
61%).
taught
an
Amid laughter from Mission Control,
the moon, an explosion in an oxygen
als]. Let’s get it organized . . . . Better
ALWD/LWI
Survey
Highlightstems aboard, placing the astronauts in
15
Continued from page
The Law Firm Experience
18% teaching outside the required
16
average of less than 1 upper-level
$150,000 males).
THE SECOND DRAFT
he sought to explain: ‘Things kinda
happened real fast down there and I
need an extension. I’m really serious.
males earn
WouldFewer
you . females
. . turn itthan
in?’”
more than $100,000
95ground
females,
Presumably,
someone(27
onofthe
did
someofquick
tax 12
research,
as 40
Flight
or 28%
females;
of 30, or
%
Glynn
Lunney
is
quoted
as
Director
of males). However, the number of
saying
thatmore
“American
citizens
femaleslater
earning
than $100,000
out
of
the
country
get
a
60-day
has risen since 2003 when 16 of exten82 (or
sion
on
filing.
‘I
assume
this
applies,’
19%) earned such salaries, and has
he added.”
risen substantially since 2001 when
only 6 of 68 (or 9%) earned such
Here’s
a Shocker
salaries. Females
with comparable
Tracy
L.
McGaugh,
TexasatCollege
years of experienceSouth
directing
their of
Law
present schools earn sometimes less,
sometimes the same, and sometimes
I had a professor in law school; let’s
more than their male colleagues.
call him . . . Satan. Satan had what I
In programs
headed by female
now know
to be a well-worn
trick.
directors,
the
salary
rangeoffor
LRW
When a certain number
students
were unprepared, he would slam his
book
shut and
storm
out surveys...the
of class in
Consistent
with
earlier
mock disgust. I vowed that if I were
2004 survey reports differences
ever a professor, I would never punish
along
gendermasses
lines. for the sins of the
the
prepared
unprepared few.
Squiggly screen fade to the present day . . .
faculty was lower: the averages at the
low in the range were lower ($48,478
low with female director; $52,616 low
During my teaching career, I have
with
male director). The averages at
been, for the most part, satisfied with
thestudents’
high end level
of theofrange
were alsofor
my
preparation
lower
($58,287
high
with
a
class. However, one of myfemale
sections
director,
$63,775
high with
a male to be
during
a recent
semester
seemed
director). I’d had to do a little more
different.
directorswe’d
weresuffered
somewhat
razzingFemale
and cajoling;
a
few
silences
less more
often uncomfortable
tenured than were
male
while
students
to find
directors
(27%fumbled
of females;
37%chapof
ters
in
the
books,
pages
in
their
notes.
males). When tenured and tenureAfter
few weeks
this, though,
I
trackadirectors
wereofcombined,
males
an
underthought
we’d
all
reached
just pass females (44% male; 39%
standing, and I was again satisfied
female). Significantly more female
with the level of preparation–except
directors continue to find themselves
for two students; let’s call them Mr.
on contract
than
malesOne
(47%
females;
Jones.
day
I decidSmith
and Mr.
27%
males,
compared
with
56%
ed I was going to call on Mr. Smith
females;
11% males
in 2003).
and
Mr. Jones
first, and
then, when
Fewer
females teach
courses I
unprepared,
predictably
they were
beyondexcuse
required
writing
than
of
the rest
would
them
fromcourse
the
class
time
(the
antithesis
to
males (60% female; 67% male). The
Professor
Satan’s
punishing
trick).
overall level
of directors
teaching
They
would courses
get the point.
The rest of
upper-level
has increased
the
class
would
see
that
I
was
really
slightly from the 2002 data when
51%
serious
about
this
class
preparation
females and 77% male directors taught
business. We would all move forward.
I’m very clever, I thought.
I went to class, and called on Mr.
Smith. Mr. Smith was unprepared; in
THE SECOND DRAFT
fact, Mr. Smith had no idea what I was
asking about. It took him about a
minute to figure out exactly what I
those by,
classes.
A similar
percentage
of
meant
“You’re
excused
Mr. Smith.
female
directors
teach
academic
Have
a good
week.
We’ll
see you next
time.”
Asashetheir
packed
I turned
support
onlyup,
upper
level to
Jones
and
said,
“Mr.
Jones,
Mr.
course than males (4% females;can
6%
you
answer
the question?”
Mr. Jones
males,
compared
with 3% females
and
looked
perplexed,
3% males
in 2003).copped immediately to ignorance,
and I directors
excused him.
Finally, female
were
Alright then. Down to business.
slightly less often eligible for paid
I then called on some of my good
sabbaticals
(35% female; 38% male),
old stand-by students to get us back
slightly
more
often
for plans
unpaid. .
on track. But oh,
theeligible
best laid
(13%
11%
male),
. .sabbatical
I couldn’t
findfemale;
a single
prepared
and
were
slightly
less
often
eligible
student. After running through about
for other
and reduced
loads
eight
more leave
students,
I made an
(46% female; 51%
announcement:
“I’mmale).
afraid I don’t
have half an hour to kick you all out
byConclusion
name. If you’re unprepared, please
leave now
let the rest ofover
us move
Likeand
its predecessors
the
onyears,
withthe
class.”
And
they
left
in a
2004 Survey captures
droves.
I felt
obligated
stand there
snapshot
of vibrant
andtovaried
as if things were going according to
programs and talented and dedicated
plan. But what I really wanted to do
faculty. Legal research and writing
was say, “Are you joking me?! All of
faculty
may be asNone
different
as the
you
are leaving?
of you
were
schools
and
geographic
regions
prepared?!” and then throw up. they
No
represent,
butjust
together
wonder
Satan
left. they represent
a dedication
to dynamic
and
When it was
all overteaching
I had four
scholarship.
students.
That’s okay. I came to teach,
they came to learn. I went ahead with
1 plan for that class.
the
The average regional salaries for the
We talked
about
persuasive
fact
remaining
regions
were:
Northeastern
statements
generally and
the ones
$94,084; Mid-Atlantic
$90,263;
Far they
read
for$87,428;
class specifically.
Then they
West,
Great Lakes/Upper
brainstormed about how they could
Midwest $86,127; Southeast $80,552;
marshal facts persuasively for their
and Southwest & South Central,
trial brief problem. The four students
$79,060.together for two hours. It
worked
really was a great class. The four told
2
e.g. Jothe
Anne
Durako,
meSee
it was
best
class ofSecond-Class
the semesCitizens
in the out
Pinkthat
Ghetto:
Gender
I pointed
it was
the Bias
first
ter.
in Legal
Writing,
50 J.in
Leg.
Educ.every562
class
of the
semester
which
one
was prepared.
Aha,
they said.
(2001);
Jan M. Levine
& Kathryn
M.
AfterGender
class, Iand
went
back
to my
Stanchi,
Legal
Writing:
Law
and
sentLittle
an e-mail
entire
office
Schools’
Dirty
Secrets,to16the
Berkeley
to
have
a
private
session
class
offering
Women’s L.J. 3 (2001); Jan M. Levine &
with
any individual
groupWriting
who &
Kathryn
M. Stanchi,or
Women,
wanted to talk about the persuasive
Wages: Breaking the Last Taboo, 7 Wm. &
facts material after they had prepared
Mary J. Women & L. 551 (2001);
it. I had one taker. The rest of them
Maureen
were
mad.J. Arrigo,
I got it.Hierarchy Maintained:
Status
Gender
Legal Writing
Theand
next
weekIssues
wasinediting.
The
Programs,
70
Temp.
L.
Rev.
117
(1997).
price of admission to class was a completed brief. In class, they would pair
up, use a short critique guide, and critique each other’s briefs. Students
came with no-foolin’ completed drafts.
The class was lively and engaged.
Afterward, almost every student in the
for
Second
classWriting
told me that
theThe
editing
class was
the best
class
of
the
semester.
I pointDraft
ed out with as much levity and humor
We encourage you to consider
as I could muster that this was the secan essay
Thefirst
Second
ondsubmitting
class for some
andtothe
class
Draft,
regardless
of
whether
youprefor many in which everyone was
haveAha,
published
before.
Writing
a
they said.
The
best class
pared.
“theme”
canwhich
be an ideal
is simply
theessay
one for
everyone
springboard to a larger article, or
is prepared.
Now,
let’s
squiggly
fade that
to you
can
help
you
clarify ideas
reading
now.
I hope
you don’t
mightthis
merit
further
development
haveelsewhere.
to kick your
We students
are alwaysout
de-of class
to get
this
same
effect.
Maybe
you can
lighted to hear from first-time
get some
value
out
of
just
telling
the
contributors!
story: “I have a friend in Houston,
If you are interested in
and one semester she and her students
writing
a “special feature” or a
learned . . . .”
column,
the doesn’t
first stepwork,
is often
And if that
you can
discussing
an
idea
or
topic.
Thetell
always slam your book shut and
long-time
column
“From
the
Desk
them about Satan. u
of the Writing Specialist” is
coordinated
by Anne Enquist, who
Talking Turkey
can
be
reached
at
Kathleen Miller, Louisiana
State
[email protected].
University
Law Center The column
“The Next Step,” which explores
Oneupper-level
of my bestwriting
classesinstruction,
was when Iis
coordinated
the Upper-Level
introduced
oral by
arguments
using a
technique
from
Toastmasters.
Writing Committee. For informa(Toastmasters
an international
pubtion contactisRuth
Anne Robbins,
lic speaking
organization that helps
[email protected].
people
Thespeak
specialbetter.)
features are selected
On
the
particular
in question,
by the Second
Draft day
editors.
Special
the task was to pull an object from a
features and columns are somehat; talk extemporaneously for two
times planned months ahead of
minutes on a subject related to the
publication,
and their
object
that had just
been publication
pulled from
in
a
particular
issue
cannot
be the
the hat; and, in so doing,
introduce
guaranteed.
term ethics.
If you
The hat
washave
filledideas
withfor
objects: a
“themes”
wouldabe
of special
spring,
a ball,that
a cookie,
small
carved
interest, or have any comments
about the content of this or other
issues of The Second Draft, please
contact the editors.
Finally, if you are planning a
regional legal writing conference,
wooden turkey, a pen, a plastic sword.
please let us know as far in
One student picked the turkey from
advance as possible of the dates
the hat.
and
locations
We areis like
So, he
began:involved.
Legal Writing
happy
to
publish
news
or
pictures
wild turkey hunting! Bill was
an avid
from
regional
conferences
as hunt,
space
wild turkey hunter. When you
available.
youisneed
the proper tools. As far as
Legal writing is like
wild turkey hunting!
wild turkey hunting goes, the hunter
needs a camouflaged outfit, a veil over
his face, and his gun. He has to be
17

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