Welcome to Thunderdome

It is now Summer 2010, and my time as Production Editor for the San Joaquin Agricultural Law Review is becoming very interesting.

Our new candidates have taken their first steps into the long march to staff membership by submitting topic summaries for our review.

As an editor it is a very exciting time because you get to mentor the candidates throughout the process, plus reflect back on what it was like when you were a candidate yourself.

Good luck to everyone, including the editors, they have a lot of work to do too!

 

Tools for Better Legal Writing (part 2)

Hey there,

Fresh from the 3L fire and now gearing up for an exciting summer as law review editor and judicial extern.  It’s been a while since my last post, but now I’m back and ready to pollute the internet with more legal gloss!  So, with that said, away we go!

—-

In my ongoing quest to write, edit, re-edit, revise, look over, and then edit some more of my own writing I ran across an excellent post from the (new) legal writer.  The post links to three other blog whose contents are invaluable and simple (but oh so hard to master when you’re a 1L) rules to legal writing:

1. Just say it! Remember, plain English legal writing is much better than “Wheretofore, the party of the first part” BS you see plugging up the inner workings of the legal system.
2. Organize everything properly just like this wise man says.
3. I have a feeling blogger Seth Godin wasn’t writing for a legal audience, but his opinion is nonetheless invaluable: “Most people work hard to find artful ways to say very little.”  Law students: DO NOT CONFORM TO THIS STANDARD!!!  If you’re going to pad your brief/memo/letter with fancy prose, then it had better say something of substance.  A better rule of thumb is to knock that crap off and just writing something in plain English.

This post continues off my other eponymous blog post a while back.

Other than signing up for law review, the best way to become a good writer is to write.  Write often.  Write when you have free time.  Write when you’re taking your lunch.  Write when you’re sitting at Starbucks.  Write when you’re waiting at the doctor’s office.  Write fiction.  Write non-fiction.  Write a blog (hehe).  Write smart stuff.  Write stupid stuff.  Write sad stuff, happy stuff, incoherent stuff, apathetic stuff, angry stuff, depressed stuff, legal stuff, non-legal stuff, or whatever floats your boat.

Until the next episode…

 

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.

 

Law Student Blogging – Setting Up Your Own Research Blog

Introduction

Laptop Keyboard

According to a March 8^th, 2008 blog post from the Frugal Law Student, every law student should blog.  It is a thesis statement that I whole-heartedly agree with.  Blogging as a means of showcasing one’s research and writing ability has taken hold all over the world.  Law firms have caught on and it is not uncommon to see a firm page have links to their own blog; some law firms’ pages are just the blogs themselves or showcase the blog as the main area of their firm’s website.  One of my favorites is the California Labor & Employment Law Blog maintained by Carlton DiSante & Freudenberger LLP.  Another is the FCPA Blog maintained by CassinLaw LLC.  The California Workforce Resource Blog (maintained by Van Vleck Turner & Zaller LLP) published a February 13^th, 2008 blog article titled: “Why Every Client Should Want a Lawyer Who Blogs.” Both the Frugal Law Student and California Workforce Resource articles revolve around the same themes: clarity of communication, quality of communication, and the potential of future communication – particularly using the blog as a means of marketability and name recognition.

I started Strict Liability in Blog for those reasons: to market myself, my writing and research ability; and to have a little fun, all the while communicating in a clear manner that may someday pay off for me.  Sometimes law school can take a toll on one’s mind after a while (current 1Ls know this all too well) and it helps to have some place of solace, a forum to vent one’s energy or frustrations and oftentimes the comforting anonymity of virtual reality that the internet provides is the perfect shoulder to cry on.  However, the problem with creating a blog to pen your memoirs, diatribes, and praise is that it can lead to ill effects – the least of which is getting sued for defamation or copyright infringement.  At the least actionable end of the spectrum, blogging one’s list of daily activities, thoughts on one’s current reality and how you spent your day off may not be material suitable to be classified as marketing material.  Perhaps most of all, one shouldn’t be so quick to scribe their personal information over the internet.

So, what then, can a law student blogger do to release a little energy, have fun, and build up a reputation as a person who knows to how handle an AmJur as deftly as a multi-connected keyword search on WestLaw?  The answer I chanced upon was to start my own legal research blog.

Write and Research What Interests You

Strict Liability in Blog sticks to California law because I’m a California law student though occasionally I venture into federal law, but even then it’s usually limited to 9^th Circuit holdings.  You may decide to set up your blog to focus on the research of law from your particular state or jurisdiction.  From there, you could then focus the entire blog to just researching and writing about one particular aspect of the law such as products liability, personal injury, bankruptcy, or something else.  Maybe common law is not your thing – you’d rather dive into the world of federal statutes: the Americans with Disabilities Act, the National Labor Relations Act, the Family Medical Leave Act, or the Military Commissions Act of 2006.  Maybe it’s not so much the law as it is the policy behind the law that gives us these statutes to which our courts then tackle and interpret.  I decided that my interest were far to varied to just lock myself into one area of law or one statute so I write when and where the mood strikes me.  Today I might publish an article on the status of the law on spouses intercepting their (supposedly) cheating spouses in California; and tomorrow I might decide to voice my opinion and status of the law to disenrolled Native Americans.  The next day I might get around to finishing that California dog bite statute article or I may decide to hold it off and write about something else.

Regardless of what happens you should write about what interests you and have fun with it.  It’s your blog – there are many like it but this one is yours.  What are you into?  What are your hobbies?  Loves?  Interests?  What’s going on in your world?

• Suppose you are a California graduate student under the employ of a public University as a teacher’s aide. Are you considered an employee with a protected right to engage in the bargaining process or are you precluded from asserting this right? That’s an article.
• You just received notice via email that your item for sale on eBay was bought but now the winning bidder does not want to pay. The value of the item is substantial. Can you sue? Can he sue back? Should you sue? What procedures come first before filing suit? That’s an article.
• You’re moving out of your apartment and your landlord decides he’s not going to return the security deposit. What’s the law in your state say? What did you go through? How do small claims clinics work? Another article.

To quote myself:

In the realm of legal research blogging is my way of exhaling; just as one can’t hold all the air in them for fear of suffocating, I can’t just learn about all this cool stuff and not share it.

Quick Tips

• If and when you cite cases, statutes, law reviews, etc. be sure to do so in the manner that you have been trained.  I was trained to use the California Style Manual but you may have been trained to use the Bluebook, ALWD, or whatever.

• It’s okay, in my opinion, to have a few non-research posts to let people know what you’re up to – it will break up the tone and mix things up a little, letting people know that not only can you write and research, but you are still a human being with things to do and activities to perform.  The following article sums up my thoughts exactly:

Blogging on diverse topics, including very light ones, is not taken to undercut your expertise among law professionals who understand how blogging works. These people are valuable readers, who will bond with you if you have a personality, write clearly, say some sharp things, and post every day. They will check in frequently in the hope of being charmed or surprised or stimulated in some new way. When you have a law-related post up, they’ll be seeing that too and interested in what you, and especially you, have to say.  In this way, the non-law posts reinforce the law posts.  (Althouse, Why a Narrowly Defined Legal Scholarship Blog is Not What I Want: An Argument in Pseudo-Blog Form (June 2006) University of Wisconsin Law School <http://ssrn.com/abstract=898171> (as of October 4, 2008).

• HAVE FUN.

The Boundaries of Free Speech & Quotes to Know

“Congress shall make no law…abridging the freedom of speech.”  (U.S. Const., 1st Amend.)

“…the First Amendment leaves no room for the operation of a dual standard in the academic community with respect to the content of speech…”  (Papish v. Board of Curators of University of Missouri (1973) 410 U.S. 667, 671 [93 S.Ct. 1197; 35 L.Ed.2d 618].)

“The freedom of speech has its limits; it does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography…”  (Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234, 245 [122 S.Ct. 1389; 152 L.Ed.2d 403].)

 

Vacation

Off to Colorado, will be back in a week or so, just in time to start work and begin my summer semester at SJCL. 

Thanks to all my readers who’ve stopped by and listened to me spew boring law stuff.  Researching case law and statutes usually turns the stomachs of my law school friends, but there’s a few of us (me included) that actually eat this stuff up and really love it.  Even with new technological research advancements like WestLaw or Lexis I must admit that sometimes nothing beats heading into the library and pulling out the hardbound reporters and supplements, strolling through volumes of Witkin and California Jurisprudence.  If anyone from school is reading this I hope they’re not rolling their eyes ;)

In the realm of legal research blogging is my way of exhaling; just as one can’t hold all the air in them for fear of suffocating, I can’t just learn about all this cool stuff and not share it.  My inspiration to start this thing came from this blog post from the Frugal Law Student: Why Every Law Student Should Blog

I hope at the very least I have been informational and maybe, perhaps…entertaining?  But for whatever reason you came here and stuck around to read more than two words of my drivel I say thank you.

Thank you and keep reading!

 

So it begins…

Hey there,

I am currently a 1L at San Joaquin College of Law in Fresno, CA and am loving law school.  Currently in my second semester and moving into our spring midterms – finals is just a month away!

This blog is going to showcase some research, thoughts, and examinations on current aspects of California law, most likely in tort law, and when I get around to it over the summer, employment law.  Who knows, might decide to sprinkle some federal law into this as well.

Thanks for reading!