Legal Writing and Research Commons^™

Persuasion Principles For Lawyers, Jarome E. Gautreaux

Mercer Law Review

Lawyers spend a lot of time trying to persuade others. In this, they are not unlike most every other human being. Whether one spouse is trying to get the other to attend a sporting event they normally wouldn’t enjoy, or a car salesperson is trying to convince a potential buyer to buy the latest model convertible, or a doctor is trying to get their patient to stop smoking, all of us engage in persuasion a large portion of the time. It isn’t a stretch to say that persuading others, or at least trying to, is part of the fabric of …

Unbelievable: How Narrative Can Help Vulnerable Narrators Overcome Perceived Unreliability In The Legal System, Cathren Page

Articles

This article examines how advocates can champion vulnerable narrators’ truths. First, advocates must prime the audience by educating the audience about the ways the vulnerability manifests; this process helps to allay credibility questions. Second, advocates must reframe seemingly untrustworthy behavior by showing how the behavior is consistent with someone in the vulnerable narrator’s situation. Third, advocates must create what fiction writers call verisimilitude—a sense of reality—by including concrete details that logically fit together in the legal narrative. Finally, advocates must label the tactics commonly used to discredit vulnerable narrators so that the audience can see those tactics for what they …

The Power Of A Good Story: How Narrative Techniques Can Make Transactional Documents More Persuasive, Karen J. Sneddon

Articles

Transactional documents are complex, multi-faceted documents reviewed by various audiences at multiple points in time. They are more than descriptive legal devices that dictate the exchange of widgets for cash. While the core of many transactional documents will be the acquisition, creation, or exchange of property or services, transactional documents do more than memorialize that understanding. At first glance, transactional documents may seem simply like expository texts that aim to create the private law between the transacting parties and educate the audience by delivering a sequence of instructions, but transactional documents do much more. They tell the stories of the …

Humanizing Transactional Documents: Why And How Transactional Drafters Should Use Narrative Techniques, Karen J. Sneddon

Articles

The core of many transactional documents will be the acquisition, creation, or exchange of property or services. Yet, transactional documents are not only descriptive legal devices that dictate the exchange of widgets for cash. They are multifaceted documents that have the ability to do more than memorialize a transaction and create the private laws between the parties. As narrative texts, transactional documents tell the stories of the parties' relationship, whether it be an employment agreement, trust document, or purchase and sale agreement. Transactional documents present necessary and relevant information as a series of linked events where the transacting parties become …

I'M From The Government And I'M Here To Help: State And Federal Resources, Sharon Bradley

Presentations

Presented in Atlanta, GA as part of the State Bar of Georgia CLE Program "Internet Legal Research" on Feb. 20, 2020, 1:20 pm.

Cool Tools: Apps And Other Tools For Lawyers, Billie Jo Kaufman

Presentations

Presented in Atlanta, GA as part of the State Bar of Georgia CLE Program "Internet Legal Research" on Feb. 20, 2020, 11:20 pm.

An Unusual Suspect? Unreliable Narrators In Fiction And Law, Cathren Page

Articles

This article discusses the common traits of unreliable narrators and provides solutions for those seeking to defeat unreliable narrators in legal battles. Since the unreliable narrator concept first developed and evolved in literary analysis, the article explores and compares unreliable narrators in both fiction and law.

When the audience cannot depend on the accuracy or reliable character of a narrator’s account, literary criticism deems these storytellers “unreliable narrators.” Unreliable narrators exhibit certain “tells,” which disclose to savvy or intuitive audience members that some aspect of the narrators’ tale is dubious. These unreliable narrators can be divided into two broad categories, …

An“Astonishingly Excellent” Solution To Super-Fake Narratives, Cathren Page

Articles

Persuasion studies indicate that facts and logic have likely never persuaded people. Rather, people typically hold “deep frame” beliefs, and story persuades them. People then use facts and logic to justify their beliefs.

While this potentially persuasive “fake news” itself is old, the widespread dissemination of fake news via bots is new. Donald Trump’s campaign benefitted from these bots and from an electoral college map more favorable to Republicans. But these super-powers were not his only strengths, the Trump campaign wielded the power of superhero storytelling techniques.

So, faced with an army of bots, a superhero story, and an unfavorably …

Happily Ever After: Fostering The Role Of The Transactional Lawyer As Storyteller, Karen J. Sneddon

Articles

Transactional documents do more than allocate the risk of loss or select the governing law. Transactional documents, whether employment contracts or lease agreements, encapsulate the wishes, hopes, and fears of the transacting parties. The documents share a series of events, identify the key actors in those events, and anticipate particular outcomes or future events. In other words, the transactional documents are narratives. The transactional lawyer is thus more than a transactional intermediary. The transactional lawyer is the narrative agent or storyteller.

The “narrative” is often associated with the following words: story, tale, fiction, and entertainment. These associations may appear to …

From Clause A To Clause Z: The Transactional Reader And Narrative Transportation, Karen J. Sneddon

Articles

You know the phrase “lost in a good book.” The book’s story is so compelling that you are absorbed by the characters, setting, actions, and plot. The book pulls you into the narrative such that you must continue to read—even if that means staying up all night to finish the book. Because many associate that immersive experience with reading a novel, the phrase “lost in a good book” is most often connected to reading for pleasure. But the experience of being transported by the words of a narrative can occur when reading a variety of texts, including legal texts. That …

Astonishingly Excellent Success Or Sad! Loser! Failure: Why President Trump’S Legal Narratives “Win” With Some Audiences And “Lose” With Others, Cathren Page

Articles

While President Trump is often called a liar and various commentators have analyzed his rhetorical approach, little has been said about storytelling's role in his wins and losses. Trump’s narratives about legal issues enjoy wild success with his supporters, amuse some critics, and terrify others. Thus far into his presidency, his legal narratives have often failed with courts. With nearly sixty-three million American voters backing Trump, scholars and students of persuasion cannot ignore his successes. However, with over sixty-five million Americans voting against him and various court’s ruling against him, scholars and students of persuasion also cannot ignore his failures. …

Ethics Of Using Artificial Intelligence To Augment Drafting Legal Documents, David Hricik

Articles

Skynet is not and may never be self-aware, but machines are al-ready doing legal research, drafting legal documents, negotiating disputes such as traffic tickets and divorce schedules, and even drafting patent applications. Machines learn from us, and each other, to augment the ability of lawyers to represent clients—and even to replace lawyers completely. While it also threatens lawyers’ jobs, the exponential increase in the capacity of machines to transmit, store, and process data presents the opportunity for lawyers to use these services to provide better, cheaper, or faster legal representation to clients. By way of familiar example, instead of determining …

Stranger Than Fiction: How Lawyers Can Accurately And Realistically Tell A True Story By Using Fiction Writers’ Techniques That Make Fiction Seem More Realistic Than Reality, Cathren Page

Articles

This Article differs from other articles on related topics in that it focuses broadly on including specific details to establish an overall sense of reality. In contrast, in his article, This is Not the Whole Truth, Professor Steve Johansen discusses those details that can ethically be omitted; this Article, however, is about which select details to include rather than to omit. Although some articles have focused on details regarding specific objects, such as an obtuse object or an endowed object, this Article covers a wider category of details that applies throughout the narrative as opposed to details that surface only …

Telling Tales The Transactional Lawyer As Storyteller, Karen J. Sneddon

Articles

Transactional lawyers are storytellers, although they may not think of themselves as such. They work with provisions and clauses to build trans-actional documents that encapsulate the wishes, hopes, and fears of the transacting parties to promote, guide, and control the relationship of those parties. Narratology, the theory of narrative, can provide a resource to transactional lawyers that facilitates the construction of a wide range of transactional documents, which can themselves be considered narratives.

The form documents that transactional lawyers use as starting points in the drafting process are already rife with narrative characteristics; they are embedded with characters and plots, …

Once Upon A Transaction: Narrative Techniques And Drafting, Karen J. Sneddon

Articles

A granddaughter joins the family business as a partner. An entrepreneur licenses his newest product. Two parties decide to settle a dispute. A charitable idea materializes as a private foundation. A parent's belief in the power of education is perpetuated by a trust agreement. Each of these events forms a narrative. A transaction is more than the scratch of pens across signature pages or the click of keys to email an executed document. A transaction is itself a story. These stories, made with provisions and clauses, result in the formation of contracts, agreements, and wills. Conceptualizing transactions as narratives benefits …

Not Your Mother's Will: Gender, Language, And Wills, Karen J. Sneddon

Articles

“Boys will be boys, but girls must be young ladies” is an echoing patriarchal refrain from the past. Formal equality has not produced equality in all areas, as demonstrated by the continuing wage gap. Gender bias lingers and can be identified in language. This Article focuses on Wills, one of the oldest forms of legal documents, to explore the intersection of gender and language. With conceptual antecedents in pre-history, written Wills found in Ancient Egyptian tombs embody the core characteristics of modern Wills. The past endows the drafting and implementation of Wills with a wealth of traditions and experiences. The …

One Small Step For Legal Writing, One Giant Leap For Legal Education: Making The Case For More Writing Opportunities In The "Practice-Ready" Law School Curriculum, Sherri Lee Keene

Mercer Law Review

While the practice of law is often equated with writing, many law courses involve little or no writing during the semester, and often only require writing in student assessment. While accredited law schools are required to offer both first-year legal writing instruction and a rigorous writing experience during the second or third year,2 few law schools infuse legal writing throughout a student's three years of law school matriculation. While significant attention is given to the breadth of law taught in law school, more attention must be given to the depth of this knowledge and the application of this knowledge to …

A Look Inside The Butler’S Cupboard: Fiction Writers’ Insights On How The External World Reveals Internal State Of Mind In Appellate Briefs, Cathren Page

Articles

By studying the scene through the eyes of the client and the witnesses, the attorney can not only evoke this psychological subtext, but can also weave relevant and probative details into the statement of facts and the argument and elicit such detail at trial. For instance, in a case involving a car accident, the weather, the temperature, the time of day, the traffic on the road, and the color of the cars, signs, and traffic lights can be relevant as to the degree that a driver was negligent. Similarly, in a case involving child neglect, the smell of a home, …

Like A Glass Slipper On A Stepsister: How The One Ring Rules Them All At Trial, Cathren Page

Articles

Trial attorneys can learn techniques that fiction writers have been using successfully for centuries and endow a single object to “rule them all.” In fact, there is a growing field of legal scholarship, known as Applied Legal Storytelling, which involves applying story telling concepts to legal concepts, and some evidence suggests that juries are responsive to narrative framework. Thus trial attorneys can use the literary concept of endowed objects to identify a key piece of physical evidence that weaves a thread of narrative continuity through the case and resonates in the mind of the judge or juror. ...

Endowed objects …

Fresh Ears, Fresh Eyes: Final Editing Through Reading Aloud, Sarah Gerwig-Moore

Mercer Law Review

I have always found the final editing process to be the most difficult. Each year in my clinic, The Habeas Project, my students and I may file as many as seven or eight court briefs. Belying the name "brief," these documents are not short. And after working on a project for three or six or even nine months, it is common for teachers and students alike to lose momentum and interest in a project along with the ability to find the typo in the haystack.

My clinic students are tired (and sometimes both sick AND tired) from working long weeks …

Legal Writing, The Remix: Plagiarism And Hip Hop Ethics, Kim D. Chanbonpin

Mercer Law Review

I begin this Article with a necessary caveat. Although I place hip hop music and culture at the center of my discussion about plagiarism and legal writing pedagogy, and my aim here is to uncover ways in which hip hop can be used as a teaching tool, I cannot claim to be a hip hop head. A hip hop "head" is a devotee of the music, an acolyte of its discourse, and, oftentimes, an evangelist spreading the messages contained therein. One head, the MC (or emcee) KRS-One, uses religious discourse to describe hip hop culture, naming his community organization, The …

What Is A Judicial Author?, Peter Friedman

Mercer Law Review

Martha Woodmansee has pointed out that

the law has yet to be affected by the "critique of authorship" initiated by Foucault and carried forward in the rich variety of post-structuralist research that has characterized literary studies during the last two decades. Indeed, . . . it would seem that as creative production becomes more corporate, collective, and collaborative, the law invokes the Romantic author all the more insistently.

Woodmansee wrote about the conceptions of authorship that legal institutions bring to bear in deciding copyright-related disputes.2 Nevertheless, the law's ignorance of the "critique of authorship" includes a willful ignorance of the …

New Ways To Teach Drafting And Drafting Ethics, Karen J. Sneddon

Articles

Good morning. My name is Karen Sneddon. Today, Sue Chesler and I are going to showcase a technique to incorporate issues of ethics and professionalism into a drafting course. And that technique is Teaching Drafting Ethics Using Video Vignettes. Of course we know at this point that Carnegie’s Educating Lawyers, CLEA's Best Practices have reinvigorated examination of law school curricula, mostly especially with the inclusion of transactional based skills increasing the awareness of issues involving professionalism and ethics. As those transactional focused courses are being added to the curriculum, professors are striving for a way to infuse those issues of …

Jill J. Ramsfield, Introduction: J. Christopher Rideout, Luncheon Speaker; And Kristin B. Gerdy & Pamela Lysaght, Presentation Of Mary S. Lawrence Award

Mercer Law Review

No abstract provided.

Stem Cell Research And Cloning For Human Reproduction: An Analysis Of The Laws, The Direction In Which They May Be Heading In Light Of Recent Developments, And Potential Constitutional Issues, Catherine D. Payne

Mercer Law Review

I. INTRODUCTION

The world is continuously changing before our eyes. New scientific and technological developments are constantly being made. Not surprisingly, these changes usually occur well before the law is ready to respond and accommodate them. One of the most recent developments that will soon be pushing the limits of the law is in the world of science. Researchers around the world have been independently working to see if they can unlock the secrets to the development of reproductive cells. Ultimately, the research teams are hoping to learn what causes stem cells to differentiate into sperm and egg cells. One …

Legal Writing: The View From Within, J. Christopher Rideout, Jill J. Ramsfield

Mercer Law Review

"[Wiriting is an act of identity . . . ."

We have seen that law professors systematically focus their students' attention on layers of textual and legal authority when deciphering the conflict stories at the heart of legal cases. But what happens to the people in these stories? What aspects of their identities and lives remain important when refracted through this legal lens? We can ask as well: What aspects of the law students' and professors' lives and experiences are considered to be salient during the conversation?

Why is writing hard to do? For lots of reasons, most people would …

Introduction To The Legal Writing Institute: Celebrating 25 Years Of Teaching & Scholarship, Kristin B. Gerdy

Mercer Law Review

The Legal Writing Institute (LWI), which was founded in 2004, is a professional organization dedicated to improving legal writing through teaching, discussion, and scholarship about legal writing, analysis, and research, both in law practice and in the academy. LWI boasts a membership of more than 2500, including members from more than thirty-eight countries, and it is the second largest organization of law professors in the United States. LWI also sponsors Legal Writing: The Journal of the Legal Writing Institute, a peer-reviewed scholarly journal established in 1988 as a forum for exchange of scholarly ideas and opinions about legal writing.

As …

Plenary I: The Historical Perspective Featuring Laurel Currie Oates, Jill J. Ramsfield & Mary Beth Beazley With Mary Garvey Algero As Moderator, And Plenary Ii: Teaching Marilyn R. Walter, M.H. Sam Jacobson & Carol Mccrehan Parker With Robin Boyle As Moderator

Mercer Law Review

The Legal Writing Institute: Celebrating 25 Years of Teaching & ScholarshipA Symposium of the Mercer Law Review
November 6, 2009Morning Session

Plenary Iii: Scholarship Featuring Linda Berger, Linda H. Edwards & Terrill Pollman With Kirsten Davis As Moderator; And Plenary Iv: Program Design Featuring Suzanne R. Rowe, Susan Hanley Duncan, & Eric B. Easton With Brooke Bowman As Moderator

Mercer Law Review

The Legal Writing Institute: Celebrating 25 Years of Teaching & Scholarship

A Symposium of the Mercer Law Review November 6, 2009

Afternoon Session

The Curse Of Tradition In The Law School Classroom: What Casebook Professors Can Learn From Those Professors Who Teach Legal Writing, M.H. Sam Jacobson

Mercer Law Review

The typical law school pedagogy suffers from a ham butt problem. As the story goes, a woman was preparing a ham dinner when she carefully cut off the ham butt before putting the ham in the oven to bake. A friend asked her why she did that. She said she did it because her mother did it. Why did her mother do it? She had no idea. So she asked her mother, why do you cut off the ham butt before putting it in the oven? Her mother said she did it because her mother did it. What was the …