Legal Writing and Research Commons^™

Eleven Observations About Legal Writing, Douglas E. Abrams

Faculty Publications

This Article collects 11 observations about legal writing that I have shared with law students since I began teaching in the late 1970s.

Shakespeare In The Courts, Douglas E. Abrams

Faculty Publications

This article continues the theme of recent “Writing It Right” articles in the Journal of the Missouri Bar. These articles describe how federal and state judges today frequently accent their opinions’ substantive or procedural rulings with references to cultural markers that can resonate with the advocates, parties, and judges who comprise the opinions’ readership. The courts’ broad array of cultural references demonstrates versatility. Some of my early articles in the Journal profiled judicial opinions that referenced terminologies, rules, and traditions of baseball, football, and other sports. Together these sports’ mass audiences help define American culture.

Later my Journal articles profiled …

Two's Company. Three's A Crowdsourcing Activity?, Rosa Castello

Faculty Publications

(Excerpt)

The start of a new school year has always excited me. As a student, it meant new supplies, new clothes, new opportunities. As a professor, I still like the newness each semester beginning brings. This past academic year brought a lot of newness with online teaching. It forced me to confront my fears and hesitations about using technology to achieve pedagogical goals and to embrace some of the exciting ways technology can be used to successfully achieve these goals. One tool I adopted from the tech world this past year—that both supported my goal of incorporating social justice issues …

Eight Strategies That Enhance Legal Writing, Douglas E. Abrams

Faculty Publications

A few years ago, I spoke about legal writing at an annual forum of Missouri’s appellate judges, held at the University of Missouri School of Law in Columbia. The hour-long presentation advanced eight strategies that enable judges and practicing lawyers to sharpen their writing. These eight strategies appear below in this article.

A Place Of One's Own: How Law Libraries Support Democracy By Protecting Citizens' Right To Read, Amy A. Emerson

Faculty Publications

By offering places for private reading and contemplation, law libraries foster wellinformed citizens capable of independent thought. This process, in turn, provides a foundation for understanding the law, questioning the law, and ultimately challenging the legal status quo, all necessary elements of a well-functioning democracy.

References To Aesop's Fables In Judicial Opinions And Written Advocacy, Douglas E. Abrams

Faculty Publications

In several “Writing It Right” articles over the past few years, I have described how federal and state judges frequently accent their opinions' substantive or procedural points with careful references to cultural markers familiar to many Americans. This article continues traveling the literary lane by turning to Aesop’s Fables. By invoking a Fable, the Friends of Animals district court continued a tradition that began in 1823, when the Pennsylvania Supreme Court cited Aesop in a will contest.

Leadership... From A To Z, Anne Klinefelter

Faculty Publications

No abstract provided.

The New Skill On The Block: Using Social Media In The Law School Classroom To Facilitate Learning, Rosa Castello

Faculty Publications

(Excerpt)

The emergence and rapid growth of technology has dramatically changed society, including the way we communicate and interact. People are gravitating toward shorter forms of written communication, like blogs and tweets. And it seems everyone interacts with others in some way on an online social media platform, exchanging ideas, connecting with friends and colleagues, and offering support.

As a Legal Writing professor, I wonder how this change in written communication will impact legal education and the profession and how I can better prepare my students for a professional environment that embraces these changes. Communication is an essential lawyering skill. …

The Cognitive Power Of Analogies In The Legal Writing Classroom, Patricia G. Montana

Faculty Publications

(Excerpt)

New law students traditionally learn better when they can connect what they are learning to a familiar non-legal experience. Therefore, the use of an analogy, which can be defined as a comparison showing the similarities of two otherwise unlike things to help explain an idea or concept, is an obvious way to facilitate a student’s connection between the new and what is already known. An analogy is a logical step in introducing the complex processes of legal research and analysis by attempting to simplify the alien structure of summarizing that legal research and analysis into a coherent piece of …

Amicus Curiae Briefs: A Message From The 7th Circuit, Douglas E. Abrams

Faculty Publications

Like other brief writers, the amicus brief’s writer must heed the court’s rules of practice and procedure, including rules that prescribe a brief’s maximum page length. But a brief writer can meet the court’s circumstances and expectations without going to the max. A few months before he ascended to the Supreme Court bench in 1943, D.C. Circuit Judge Wiley B. Rutledge advised advocates to strike a balance by being “as brief as one can be consistent with adequate and clear presentation of his case."

An amicus’ prudent approach to concise brief writing is to adapt the advice delivered by opera …

References To Children's Stories And Fairy Tales In Judicial Opinions And Written Advocacy, Douglas E. Abrams

Faculty Publications

Jones v. State is typical of recent state and federal court decisions that have spiced substantive or procedural points with references to classic children’s stories or classic fairy tales. These literary resources have won places in American popular culture and are likely generally familiar to readers, especially when (as in Jones) the court provides any necessary context explaining the resource’s relevance to the decision.

In previous Journal of The Missouri Bar articles, I have written about judges’ invocation of an array of influential cultural markers that are generally familiar to Americans. These articles explored written opinions that accompanied substantive or …

Mincing No Words: When The Court's Opinion Criticizes An Advocate's Writing, Douglas E. Abrams

Faculty Publications

In recent years, court opinions have chastised counsel’s briefs or other written submissions for such structural deficiencies as improper citations; missing exhibit labels; incomplete tables of citations; mis-numbered counts; failure to cite to the record; and skirting of court rules that regulate font size, maximum page limits, mandated margins, and the like. Beyond structure, opinions have also chastised counsel for written submissions that are “riddled with misspellings, typographical errors, punctuation errors, and grammar and usage errors” and for those marked by careless cutting-and-pasting from forms or other prior work product, or by careless reliance on spell-check.

Some opinions identify the …

Generalist Judges And Advocates' Jargon, Douglas E. Abrams

Faculty Publications

Clerking is a privilege. Fresh out of law school and eager to begin their careers, law clerks at any level of the federal or state judiciary covet the opportunity to learn from a judge’s reservoir of knowledge. But law clerks who anticipate careers writing as advocates are also well-positioned to learn about something that a judge may not know when briefs or other adversary submissions land on the desk.

That “something” concerns jargon, this article’s focus because its use by advocates can impede the court’s understanding of a case’s facts and law. “Jargon” refers to “special words or expressions that …

The Power Of A Positive Tweet, Patricia G. Montana

Faculty Publications

(Excerpt)

I am not naively suggesting that all we need are more positive tweets to solve the inequity problems that still plague many law schools’ treatment and advancement of legal writing faculty. But I do wonder whether more positive tweets from administrators, tenured colleagues, and others can help (and more instantaneously) spread positive feelings, heal past harms, build relationships, forge new connections, and ultimately help create more opportunities for success.

Getting It Right By Writing It Wrong: Embracing Faulty Reasoning As A Teaching Tool, Patricia G. Montana, Elyse Pepper

Faculty Publications

(Excerpt)

In the early days of legal writing, we use exercises that have clear "right" answers. The rules are very simple and their meaning, even without looking at the cases, is usually clear. So, the "right" answer is often obvious. Indeed, it is intuitive. Though these exercises give students a sense of accomplishment and allow them to track achievement and understand success and failure, in some ways, they reinforce a common problem in first-year law students: their inability to see beyond the surface of a legal rule.

To ensure the "right" answer, students must distill not only a general rule, …

Research Strategies And Organization, Courtney Selby

Faculty Publications

(Excerpt)

The model for the research process outlined in Chapter 1 assumes a project that is undertaken from scratch, with no prior knowledge of the area of law or essential relevant authorities. Chapter 1 calls this a “fresh search.” However, each research project is by nature unique, and thus requires a distinctive strategy. This chapter explores the ways a judicious researcher can take the essential elements of a fresh search, consider the practical confines of the research environment, develop a strategy for approaching the research process that fits the unique problem, and implement that strategy in a cost-effective and efficient …

The Value Of An Academic Law Library In The 21st Century, Anne Klinefelter

Faculty Publications

Law school deans and university provosts may ask how law libraries can deliver value as new technologies, practices, and economic pressures inspire reassessment of legal education and of higher education more generally. The proliferation of information delivery systems, trends towards centralized management of higher education infrastructure, and changes in the law practice market suggest that the traditional law library may not meet current needs. But law libraries have the potential and opportunity to deliver strong value in this environment due largely to the sophistication of today's law librarians. The law library can be a center for expertise that can advance …

References To Movies In Judicial Opinions And Written Advocacy, Part 2, Douglas E. Abrams

Faculty Publications

In the Journal’s September- October issue, Part I of this article sampled recent federal and state judicial opinions that cite themes, scenes, or characters from movies listed on the American Film Institute (AFI) “100 Greatest American Films of All Time.” This Part II picks up where Part I left off. The discussion below samples recent judicial opinions that cite other well-known movies that have captivated American audiences without winning places on the “100 Greatest” list. Part II concludes by explaining why brief writers should feel comfortable following the judges’ lead by carefully using movie references to help make written substantive …

References To Movies In Judicial Opinions And Written Advocacy, Part 1, Douglas E. Abrams

Faculty Publications

In opinions in cases with no claims or defenses concerning movies or the movie industry, trial and appellate judges often help explain substantive or procedural points, or help embellish the discussion, with references to themes, scenes, or characters from well-known films that have held Americans’ attention. Sometimes the reference appears in an opinion of the court, and sometimes it appears in a concurring or dissenting opinion.

America's Founding Editors: Writing The Declaration Of Independence, Douglas E. Abrams

Faculty Publications

On Congress’ behalf, one of its members, 33-year-old Virginia lawyer Thomas Jefferson, drafted the Declaration of Independence. For the next half century, Jefferson’s fierce pride of authorship, unrestrained by humility, kept him from crediting Congress for skilled editing that helped make him a national icon by sharpening his powerful, but less than polished, draft. The irony of lawyer Jefferson’s enduring bitterness and ingratitude can stimulate today’s lawyers to sharpen their own drafts by respecting cooperative editors as valuable allies, not as troublesome adversaries.

References To Television Shows In Judicial Opinions And Written Advocacy (Part Ii), Douglas E. Abrams

Faculty Publications

In the Journal’s January-February issue, Part I of this article began by surveying television’s profound influence on American culture since the early 1950s, a sturdy foundation for federal and state judges who cite or discuss well known television shows in their opinions. Part I presented television drama shows.

This Part II picks up where Part I left of. The discussion below presents television situation comedies (“sitcoms”) and reality TV shows that appear in judicial opinions. The discussion concludes by explaining why advocates should feel comfortable following the judges’ lead by carefully using television references to help make written substantive or …

References To Television Shows In Judicial Opinions And Written Advocacy (Part I), Douglas E. Abrams

Faculty Publications

No abstract provided.

Live And Learn: Live Critiquing And Student Learning, Patricia G. Montana

Faculty Publications

(Excerpt)

After nearly fifteen years of teaching first-year and upper-level legal writing courses and commenting on thousands of student papers, I decided to experiment with a new way of giving feedback. In a break from the traditional written feedback I had become accustomed to in the form of margin comments and a combination of line edits and end notes, I opted to live a little and learn a new practice: live critiquing. Live critiquing is essentially the process of giving students feedback on their work “live” or in-person, rather than in writing. In the most liberal approach to live critiquing, …

The Legal Imagination: Studies In The Nature Of Legal Thought And Expression, Rachel H. Smith

Faculty Publications

(Excerpt)

This book, now available in a 45th-anniversary edition, is a marvel for its breadth and creativity. It remains a must-read for lawyers, law students, and law professors, even those who are not familiar with the Law as Literature movement for which the book was a founding contribution. Those who read it decades ago would be well served by a revisit because the book’s care and attention to legal language remain uniquely powerful.

Finding Balance: Using Employment Law Problems To Achieve Multiple Learning Goals In Persuasive Legal Writing, Rosa Castello

Faculty Publications

(Excerpt)

Legal Writing professors, like myself, face the same challenge each new semester: how can I effectively and efficiently help students learn one of the most important skills for a practicing lawyer? And one large hurdle in this quest to make our students good legal writers is creating a trial motion or appellate brief problem that helps them develop the particular skills required for persuasive legal writing. The act of creating the problem is sometimes like tightrope walking̶ finding just the right balance of facts and law to challenge students and help develop and enhance vital research, analytical, organizational, writing, …

One Legal Argument, Robin Boyle-Laisure

Faculty Publications

(Excerpt)

A governing rule may be composed of a single legal argument, or multiple legal arguments, particularly if the client’s question requires analysis of multiple elements or factors. Each legal argument that an attorney builds will have the same components. Those components are

• A statement identifying the legal issue to be addressed.

• The rule governing the legal issue and, where needed, an explanation of the relevant authorities or cases supporting that rule.

• An application of the law to the facts of your client’s case.

• A final conclusion or prediction about how a court might rule on …

The Unparalleled Benefits Of Teaching Parallelism, Rachel H. Smith

Faculty Publications

(Excerpt)

As a student, I never learned how to use parallel structure, or “parallelism,” as a writing technique. I didn’t even know the official term until I started teaching legal writing. But even if I couldn’t name it, I always knew I liked it. As a high-school history student, I felt its force in speeches like Abraham Lincoln’s Gettysburg Address, William Jennings Bryan’s Cross of Gold, and Martin Luther King Jr.’s I Have a Dream. Parallelism always felt to me like the place where poetry meets prose—where even the most mundane writing can start to sing.

One Judge's "Ten Tips For Effective Brief Writing" (Part Ii), Douglas E. Abrams

Faculty Publications

Chief United States Bankruptcy Judge Terrence L. Michael (N.D.OKLA.) has written "Ten Tips for Effective Brief Writing" and posted them on the court's website. In the Journal's September-October issue, part 1 of this article began by discussing Tip #9 ("leave the venom at home"). That part proceeded to discuss Tips 1-4.

This final part discusses the remaining Tips. All 10 thoughtful Tips warrant careful consideration from advocates who prepare submissions for trial courts or appellate courts.

Keeping Up With New Legal Titles: The Legal Research Manual With Video Modules, 2nd Ed., Christine Iaconeta Dulac

Faculty Publications

The Legal Research Survival Manual with Video Modules, by Robert Berring and Michael Levy, is an eighty-seven-page book written in a conversational, informal tone, packed with all the information new legal researchers need to survive their early days in the law library. The book's intended audience are novice legal researchers, in particular first-year law students. The authors have filled the pages with sage advice but left out material novices are not likely to encounter during the first year of law school. The authors, with the help of two additional experts, have added twelve online videos readers can access for expanded …

One Judge's Ten Tips For Effective Brief Writing (Part I), Douglas E. Abrams

Faculty Publications

In his years on the federal bankruptcy court bench, Judge Michael had read his share of briefs and other filings. Experience led him to write "Ten Tips for Effective Brief Writing," and to share them on the Court's website to guide counsel who appear before him. He directed the Gordon parties to Tip# 9, "Leave the Venom at Home." "Whether you like (or get along well with) your opposition," the Tip advises, "has little to do with the merits of a particular case. The most effective attack you can make is to persuade ... me that the other side is …