Bryan Garner is not coming to my town. Sad face.

One of the storied sentinels of legal writing, Bryan Garner, author of Legal Writing in Plain English, The Winning Brief, etc., is making the rounds on a CLE/speaking tour that includes many cities.

Unfortunately, he’s coming no where near the West Coast.  I find myself on the verge of tears and anxiety.

It’s probably not too surprising that I have a man-crush on this guy.  The man writes like a genius.  If I could just be as half as good a writer that he is then I foresee no problems with my career whatsoever.  What-so-ever.

(In case Bryan Garner or one of his minions reads this blog, then please come to my town!)

 

Quick WestLaw Tip: Use the Digest and Synopsis Field Restrictions to Quickly Find Points of Law

Hello everyone,

A few people have been coming up to me with Westlaw questions, so I thought I’d put up a real helpful and easy way to find cases for points of law you need quickly.

WestLaw has several field restrictions that can help you narrow your search.  The one I’m going to show you is the Digest field restriction, or DI(x), where DI stands for Digest, and “x” stands for the key words you’ll type in.

For example, if you want to find cases that contain points of law referring to the Federal Tort Claims Act’s Discretionary Function exception you might type in this:

DI(FTCA “Federal Tort Claims Act” /p “discretionary function”)

Or, maybe find something on equitable servitudes:

DI(“equitable servitudes”)

Now, we’ll turn to the Synopsis field restriction.  The Synopsis portion of the case is a quick summary of the case that you see at the beginning of every case you pull up on WestLaw.  So, let’s combine Synopsis and Digest field restrictions to find cases even quicker.  The Synopsis field restriction is encoded as SY(x)

Let’s say you want to find cases involving automobile accidents and the negligence element of foreseeability.  To link field restrictions together in the same search use the ampersand character (“&”).

So, for example, you might enter:

SY(auto! vehicle car truck motor! /p crash accident collision collide) & DI(negligence /p foreseeability foreseeable)

Try this out and let me know if it works, or if you have any questions.

 

Tools for Better Legal Writing

If only I wasn’t so hasty in wanting to spend my Barnes and Noble gift certificate, I might have waited a little to buy one of the following books (recommended by the Legal Writing Prof Blog):

Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing, by Stephen V. Armstrong and Timothy P. Terrell.

The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Court, by Bryan Garner.

Style: Ten Lessons in Clarity and Grace, by Joseph M. Williams (not specifically legal related) (Note: 9th ed. is now available with different title: Style: Lessons in Clarity and Grace, by same author).

Legal Writing in Plain English: A Text with Exercises, by Bryan Garner

Legal Writing: Getting it Right and Getting it Written, by Mary Barnard Ray and Jill J. Ramsfield

Anything by Bryan Garner.

I already own Legal Writing in Plain English, and it’s an awesome book.  My girlfriend has The Winning Brief and The Red Book, both written by Bryan Garner, and I’ve been meaning to get my hands on them for quite some time.

After working for roughly a year with the U.S. Attorneys office I’ve picked up my own habits that I like to inject into every memorandum I write:

1. Figure out which jurisdictional attack your boss is planning and incorporate some of the standards into your writing.  For example, the majority of my work goes into P&A’s for Summary Judgment, so I always begin with a quick blurb on the standards of summary judgment, and what is necessary for our side to prove (depending if we’re the moving or non-moving party) given the context of the case.
2. Always give a general background of the area of law you’re discussing before developing specific cases with your client’s facts.  For example, if you’re writing up a memo on medical malpractice, two or three sentences discussing the general elements of a med mal cause of action wouldn’t hurt.  Most times your boss is too busy with so many different cases, and might need the general outline of the law to re-orient himself (or herself) so he (or she) can focus on this case.
3. Somewhere in the conclusion, or as the conclusion itself, argue to the judge reading your arguments about why a ruling for your side is fair.  Judges are just as concerned with law, facts and evidence as you are; however, they shoulder the burden of equity, and making sure that the law is applied in a manner that will produce justice.

That’s all I can think of right now, but if I think of more I’ll post them.  Any suggestions of your own?

 

Law Review Articles in Decline?

Here’s an interesting post from the Adjunct Law Prof Blog:

Has the ready availability of digital law review collections on LexisNexis, Westlaw, HeinOnline and law review websites eliminated the need for subscribing to law reviews?

…

And then there is the irrelevance factor. Maybe law review articles simply are not as relevant to members of the bench and bar as they once were…

The author concludes with an interesting prediction:

Judges just don’t use [law review articles] any more. My own view is that in todays world there is a waste of emphasis on legal theory which no one, other than other law review writers, find helpful. Law reviews also take too long to publish. My last two article each took well over a year to get published!

I believe online short law review journals are the waive of the future together with blogs which provide immediate commentary on developing issues.

Oh, really?  I can only express a cautious and guarded optimism in the thought that online media is becoming a new source of legal treatising, commentary and theory; however, I firmly believe law review articles have a very special place in the legal world.

A law review article can expound with more information, more insight, more analysis and more stimulation than a blog article could ever hope to contain.  And believe me, I love blogging but let’s face it, this just ain’t the way to go about things.

If law review articles are in decline – and what I’m about to say is highly speculative and subjective – it’s because:

1. Like the blog author noted, WestLaw and LexisNexis provide online access to hundreds of law review articles, all of which can be accessed via term, connections and keyword searches.  This quick and easy feature of online databases puts mail-based subscriptions on the back burner.
2. Perhaps the quality of writing and analysis turns away those who are looking for insightful commentary on a legal issue.  Analagogous to this particular notion comes from my experience as a former senior editor of a peer-reviewed, graduate level history journal – not a law review by any stretch of the imagination but both were graduate level publications, each required close scrutiny to citation of pertinent and relevant sources, each required that its authors had some basic concept of fact analysis, and lastly, you had to be able to put a sentence together in a readable fashion.  Much of the entries I reviewed were either bad or catastrophically bad, you wouldn’t have been able to tell these were graduate students.  Fortunately, the articles we accepted for publication were awesome but just thinking about the reject pile makes me shiver over the quality (or lack thereof) of graduate level writing.  I do not find it hard to imagine a similar situation occurring in law review editors’ rooms across the nation.
3. We live in a culture of immediacy – everything has to happen now, now now; attention spans last all of 20 nanoseconds and if we can’t have the information we want then we move on to somewhere else.  Who wants to read a 50 page law review article?  Even 20 is cutting it close.  There is some justification to Mitchell Rubinstein’s prediction that online media like blogs are better for up-to-the-minute commentary and analysis.  Why skim the rows of the law review section of the library when you have google?

Despite this, however, I believe in declines as much as I believe in renaissances.  Sooner or later people are going to realize that the informational quick fix is nothing like the mature, well-written, engrossing and longer law review article.

 

Deterioration of Legal Writing?

An interesting article from Legal Blog Watch:

A few months back, we posted about the deterioration of legal writing and theorized that the proliferation of e-mail, texting and Twitter — all of which encourage stream-of-consciousness ramblings and careless phrasing — might explain the erosion of writing skills. It turns out there’s a more serious cause: legal education, or lack thereof.

Inside Higher Education reports that results of the 2008 Annual Law School Survey of Student Engagement (LSSSE)  show that nearly half of all law students believe that law school does not “contribute substantially” to their ability to “apply legal writing skills” in the real world. Though most students feel that law school offers adequate opportunities to write papers and memos, more than a third wished for hands-on experience in practice-related writing, such as drafting motions or transactional documents.

I came from a graduate degree program before heading to law school and even though I felt like I could write really well, learning how to do it in a legal fashion took some time to learn.  And I still think I don’t have it right yet.

However, I wouldn’t put that on my school or my legal analysis/research professor.  I put that on myself.  Like most law students I have access to WestLaw and Lexis; briefs and motions are always available to view at a moment’s notice.  Legal writing takes practice and let’s face it, some people adapt more quickly than others and for the rest of us we just need time and patience.  If we have allowed our writing skills in general to deteriorate through Facebook, Twitter, etc. it’s not the school’s fault, it’s our own.

The LSSSE study found that few students used computers to download sample copies of briefs that could be used as a writing or study aid.  Instead, many students who use computers in the classroom do so to e-mail each other, surf the Web or play video games.

See what I’m talking about?

[Martha Sperry] recommends integrating legal research and writing into specific substantive courses so that, for example, students could learn to draft articles of incorporation while studying the basics of corporations law.

Now that sounds interesting.  Or how about drafting a contract in your contracts class?  A disclaimer for torts when hitting the products liability section, motion to demurrer in civil procedure, and so on?  Doesn’t sound like a bad idea.

At a time when we communicate in sound bites and blog-blurbs and lack the attention span to focus on sentences of more than 140 characters, can legal writing in its present form survive? Or is that the point: Should law schools be focusing on ways to ensure that legal writing keeps its relevance in the age of the Internet?

Let’s not pass the buck.  It’s the law student’s concern that they can’t write well, not the schools.

 

Tribal Law Fans: 3rd Annual Western Conference on Indian Sovereignty

On January 24th, 2009, the Federalist Society is hosting the 3rd Annual Western Conference in Simi Valley, CA at the Ronald Reagan Library.

Event details are: here.

Conference Title: Federal Sovereignty, State Sovereignty, and the Sovereignty of 562 Native American Tribes: A Match Made in Heaven or Somewhere Less Pleasant?

The Agenda:
10:00 a.m. – 10:15 a.m.
Conference Registration

10:15 a.m. – 12:00 noon
Roundtable Discussion: How Comfortably Does Tribal Sovereignty Fit With American Democratic Ideals?

12:00 noon – 1:45 p.m.
Luncheon Address

2:00 p.m. – 3:30 p.m.
Panel Discussion: International Law and Indian Law

3:45 p.m. – 4:45 p.m.
Debate: The Apology Resolutions and the Akaka Bill

4:45 p.m. – 5:30 p.m.
Student/Lawyer Reception

5:00 p.m. – 6:00 p.m.
General Reception

Featured Speakers:

* Hon. Carlos Bea, U.S. Court of Appeals, Ninth Circuit
* John Fund, Wall Street Journal
* Prof. Carole Goldberg, UCLA School of Law
* Dan Kolkey, Gibson, Dunn, & Crutcher LLP
* Joe Matel, Legislative Counsel, Senate Judiciary Committee
* Walter Olson, Manhattan Institute for Policy Research
* Hon. Diarmuid O’Scannlain, U.S. Court of Appeals, Ninth Circuit
* Prof. Maimon Schwarzschild, University of San Diego School of Law
* Hon. Tom Sansonetti, Holland & Hart LLP
* Prof. Alexander Tallchief Skibine, University of Utah College of Law
* Hon. Kenneth W. Starr, Dean, Pepperdine University Law School

Registration details:

$30.00 for all Non-Students

CLE also available for an additional $20.00

Free for Students