A Compendium of Legal Writing Sources

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A Compendium of Legal Writing Sources

Almas Khan *
I. INTRODUCTION The Washburn Law Journal is fittingly commemorating its fiftieth volume with this topical issue on legal writing, and the Legal Writing Institute recently marked a milestone of its own. At the Institutes 2010 biennial conference, presenters celebrated the organizations twenty-fifth anniversary and touted its remarkable growth, noting that while 108 professionals gathered for the Institutes inaugural conference in 1984, more than 600 professionals were in attendance at the current conference. Academics and practitioners have expressed an expanding interest in the discipline of legal writing as law offices, courts, and businesses continue to be inundated with shoddy legal docu1 ments. Attorneys have acknowledged legal writings integrality to effective 2 advocacy and, concomitantly, legal writing programs are increasingly being 3 staffed by full-time faculty with an enduring commitment to the field. With the rising status of legal writing programs and their facultys incorporation
* Assistant Professor of Law, University of La Verne College of Law; B.A., Stanford University; M.A., University of CaliforniaIrvine; J.D., University of Chicago Law School. 1. Judith D. Fischer, The Role of Ethics in Legal Writing: The Forensic Embroiderer, The Minimalist Wizard, and Other Stories, 9 SCRIBES J. OF LEGAL WRITING 77 (2003-2004) (updating the authors preceding article with more recent cases in which courts reprimanded attorneys for misstating the law or facts, writing poorly, plagiarizing, or acting uncivilly); Judith D. Fischer, Bareheaded and Barefaced Counsel: Courts React to Unprofessionalism in Lawyers Papers, 331 SUFFOLK U. L. REV. 1 (1997) (enumerating cases in which attorneys were sanctioned for substantive, formal, and procedural deficiencies in their written submissions to courts); Susan Hanley Kosse & David T. ButleRitchie, How Judges, Practitioners, and Legal Writing Teachers Assess the Writing Skills of New Law Graduates: A Comparative Study, 53 J. LEGAL EDUC. 80, 85 (2003) (finding near-universal agreement about poor legal writing quality among surveyed judges, attorneys, and legal writing instructors); Kristen K. Robbins, The Inside Scoop: What Federal Judges Really Think About the Way Lawyers Write, 8 J. LEGAL WRITING INST. 257, 284 (2002) (recommending, based on a survey of federal judges, that attorneys draft more perceptive, clear, and concise legal analyses); ROBIN WELLFORD SLOCUM, LEGAL REASONING, WRITING, & PERSUASIVE ARGUMENT 218 (2d ed. 2006) (excerpting a corporate employers letter to a law school excoriating a writing samples sloppy editing, poor organization, significant grammatical and syntactical errors, as well as poor logic, reasoning and analysis). 2. RONIT DINOVITZER, NALP FOUND. FOR LAW CAREER RESEARCH & EDUC. & THE AM. BAR FOUND., AFTER THE J.D.: FIRST RESULTS OF A NATIONAL STUDY OF LEGAL CAREERS 81, 90 (2004), available at http://www.americanbarfoundation.org/uploads/cms/documents/ajd.pdf (ranking legal writing as the most useful non-clinical course in law school based on a survey of 3,905 recent law school graduates); Bryant G. Garth & Joanne Martin, Law Schools and the Construction of Competence, 43 J. LEGAL EDUC. 469, 492 (1993) (ranking ability in legal analysis and legal reasoning among the top three factors in promotion to partnership based on a survey of seventy-nine Chicago hiring partners). 3. Suzanne E. Rowe, From Polaroid Snapshot to 3-D Movie: Updating the Annual Survey of Legal Writing Programs, 16 J. LEGAL WRITING INST. 565, 57071 (2010) (commenting that non-directors who taught legal writing in 1990 were often students, adjuncts, and short-term instructors[,] but that only a small percentage of schools retain the adjunct-taught or student-taught legal writing model today).
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into legal academia, legal writing scholarship has proliferated. During my past five years as a legal writing instructor, I have endeavored to categorize this scholarship, compiling a master list with hundreds of legal writing sources organized by topic. Students and other faculty members often have consulted me for assistance with legal writing, and the master list has proven to be an indispensable guide for them. In this article, I present an edited version of the master list for readersincluding academe, practitioners, and studentsseeking to improve their legal writing. Before proceeding to the compendium, I offer an explanation of its scope and my methodology for selecting and organizing sources. Regarding scope, I intended to identify basic legal writing sources that could lead an interested reader to authorities furnishing more comprehensive advice on a subject; this resulted in a moderately sized bibliography and necessitated the elimination of several topics related to legal writing. For example, while I listed many texts discussing legal research generally, because each area of law requires a distinctive research strategy, no references to subject-specific legal research sources are included below. Also, to ensure that this inventory appealed to the broadest possible audience, I excised most works that focused exclusively 5 on legal writing pedagogy. The bibliographys sources were culled from my master list of approximately 500 texts and websites, which I discovered by scouring legal writing 6 7 books, disciplinary journals, newsletters, and the Social Science Research 8 Network (SSRN) page dedicated to legal writing. Colleagues at legal writing conferences also have contributed to this list, as the Works Cited handouts that occasionally accompanied their presentations provided me with another 9 helpful resource. Finally, the Legal Writing Prof Blog and serendipity aided me in creating a relatively thorough list of legal writing sources from which I extracted the 123 works cited in this bibliography, classified under a bakers dozen worth of headings.
4. For a selected list of publications by legal writing professors through 2005, see Terrill Pollman & Linda Edwards, Scholarship by Legal Writing Professors: New Voices in the Legal Academy, 11 J. LEGAL WRITING INST. 3, 59212 (2005). Additionally, a book written by the American Bar Association (ABA) contains a partial bibliography of legal writing scholarship through May 15, 2006. AM. BAR ASSN, SOURCEBOOK ON LEGAL WRITING PROGRAMS (2d ed. 2006), available at http://www.abanet. org/legaled/publications/sourcebook/sourcebookbibliography.pdf. 5. Legal writing professors searching for pedagogical tips may consult two articles: Mary Olszewska & Thomas E. Baker, An Annotated Bibliography of Law Teaching, 18 PERSP. 34 (2009), and Mary A. Hotchkiss, Index to Perspectives: Teaching Legal Research and Writing, 18 PERSP. 49 (2009), which classifies articles in the journal from 1992-2009 by author and topic. Additionally, I plan to draft an annotated bibliography of scholarship on legal writing pedagogy, as the subject merits its own article. 6. These include the Journal of the Association of Legal Writing Directors (to be re-titled Legal Communication & Rhetoric: JALWD beginning with the Fall 2011 volume), Legal Writing: The Journal of the Legal Writing Institute, The Scribes Journal of Legal Writing, and Perspectives: Teaching Legal Research and Writing. 7. These include The Second Draft, published by the Legal Writing Institute, and the American Association of Law Schools Section on Legal Writing, Reasoning, and Researchs newsletter. 8. Legal Writing eJournal, SOCIAL SCIENCE RESEARCH NETWORK, http://www.ssrn.com/link/LegalWriting.html (last visited Jan. 22, 2011). 9. LEGAL WRITING PROF BLOG, http://lawprofessors.typepad.com/legalwriting/.
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That noted, I make no claim to the master lists exhaustiveness; because legal writing scholarship has been burgeoning, I could not feasibly locate and categorize every legal writing source, and some of the bibliographys deficiencies may stem from the master lists incompleteness. Moreover, because the bibliography distills the master list, the sources it cites (and neglects to cite) reflect my personal predilections and collective wisdom, resulting in a somewhat eclectic set of cited works. I welcome reader insights about inclusions and omissions, taking responsibility for any oversights and encouraging updates about sources published after this article is printed. Although the bibliography contains few sources centered on legal writing instruction, the organization of topics in its first half parallels the order of assignments in a typical two- or three-semester legal writing course, moving from introductory to advanced legal writing texts. I begin by enumerating elementary legal writing texts and sources introducing the study of law, case synthesis and small-scale organization, objective legal memoranda, persuasive writing and appellate advocacy, oral argument, and advanced legal writing. The remainder of the bibliography is devoted to sources discussing legal research, legal writing style, legal citation, law school assistance, academic legal writing, and useful miscellany. Within each topic, the organizational principle varies based on the chosen sources, but I attempted to array the sources logically to facilitate the readers navigation through the bibliography. The cited sources vary in form and are penned by diverse authors, assisting readers desiring urgent advice or more probing treatment of a given topic. Law professors, attorneys, and judges provide incisive perspectives on legal writing in the websites, bar association journal columns, brief articles, working papers, law review articles, and books that this compendium proffers for the readers perusal and, hopefully, enlightenment. II. ELEMENTARY LEGAL WRITING BOOKS Dozens of books geared toward beginning legal writers populate the market today, and I could have doubled the following list by including other 10 The ten cited here are the seminal ones, in my estimation, excellent texts. or the most instructive starting off points for readers seeking one-stop legal writing shopping. These books discuss several topics that the bibliography addresses below and are thus not cross-referenced repeatedly in those sections. The texts should assist law students wanting additional guidance for courses or summer employment, legal writing professors adopting a new course book, and practitioners searching for a refresher on legal writing basics. I arrayed the books based on their length, not perceived quality, as each
10. For a more expansive list of elementary legal writing texts, readers may consult the recommended reading section in many of the cited legal writing books or they may access law school library websites. See, e.g., Legal Writing, UNIV. BUFFALO LAW LIBRARY (July 2009), http://law.lib.buffalo.edu/PDFs/Legal Writing.pdf. (last visited Jan. 22, 2011).
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readers criteria for an optimal introductory legal writing text varies, and readers are advised to leaf through a few volumes to find the primer tailored to their needs. 1. Austen L. Parrish & Dennis T. Yokoyama, Effective Lawyering: A Checklist Approach to Legal Writing and Oral Argument (2007). The authors employ a minimalist approach, providing a checklist of general techniques to enhance readers legal writing before concisely describing specific techniques for trial and appellate briefs, as well as oral argument, interoffice memoranda, letters, and academic writing. The text is ideal for junior lawyers, law professors, and students desiring supplemental material on the fundamentals of effective lawyering. 2. Nancy L. Schultz & Louis J. Sirico, Jr., Legal Writing and Other Lawyering Skills (5th ed. 2010). This book is a stand-alone introductory legal writing text and more, focusing on communication skills used in practice from the time an attorney meets a client through the argument of an appeal. In addition to covering traditional topics, such as the American legal system, case briefs, legal analysis, memoranda, appellate briefs, and oral argument, the authors describe how to compose a client opinion letter, advise a client, negotiate, communicate electronically, and draft pleadings and pre-trial motions. 3. Linda H. Edwards, Legal Writing: Process, Analysis, and Organiza11 tion (5th ed. 2010). One of the standard references in the field, Professor Edwards book treats legal writing as a process, teaching readers how to outline the rule of law that will provide the organizational structure for a memorandum, brief, or oral argument, which are topics the text covers in depth. 4. Veda R. Charrow, Myra K. Erhardt & Robert P. Charrow, Clear and Effective Legal Writing (4th ed. 2007). Suited for the beginning legal writer, this book discusses basics about the law, including the legal system and litigation process, case briefing, and case synthesis. It also describes the unique features of legal language and different categories of legal writing, underscoring the importance of context, organization, clarity, and revision for effective legal writing. Annotated examples help readers learn how to draft an intraoffice memorandum, a memorandum of points and authorities, and an appellate brief. Additionally, the authors explain how to convert an objective memorandum into a persuasive document.
11. An abridged version of this textbook tracks assignments in a typical first-year legal writing course. See LINDA H. EDWARDS, LEGAL WRITING AND ANALYSIS (2d ed. 2007).
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5. Richard K. Neumann, Jr., Legal Reasoning and Legal Writing: Struc12 ture, Strategy, and Style (6th ed. 2009). This textbook intertwines legal reasoning and legal writing, introducing law, legal studies, and legal writing. It also describes how to organize proof of a conclusion of law, analyze legal authorities, and draft compelling, technically proficient office memoranda, motion memoranda, and appellate briefs. Other forms of legal communication covered include client advice letters, demand letters, exam answers, and oral argument. 6. Deborah A. Schmedemann & Christina L. Kuntz, Synthesis: Legal Reading, Reasoning, and Writing (3d ed. 2007). Analyzing one sample case, this book proceeds through subjects ranging from an introduction to law, cases, and statutes to rule application, memorandum drafting (including the transactional context), brief writing, and oral advocacy. Chapters also discuss advice letters, demand letters, and pleadings (complaints, answers, and discovery documents). Innovative charts and diagrams complement the text and appeal to visual learners, and appendices outline the writing process and provide pointers on style, citation, and contract drafting. 7. Charles R. Calleros, Legal Method and Writing (5th ed. 2006). Professor Calleros expertise in academic support for law students imbues this comprehensive text, which covers topics including each component of the IRAC paradigm (issue, rule, application, and conclusion), case briefs, outlines, essay examination techniques, and research strategies. Chapters also discuss other traditional subjects, such as the legal system, legal method and analysis, writing style, citations, office memoranda, appellate briefs, and oral argument. Special chapters on summary judgment motions, motions in limine, pre-trial advocacy (pleadings and motions), and writing to parties (contracts, advice letters, and demand letters) render this book an invaluable resource for readers seeking assistance with legal writing beyond memoranda and appellate briefs. 8. Helene S. Shapo, Marilyn R. Walter, & Elizabeth Fajans, Writing and Analysis in the Law (5th ed. 2008). Another classic work in the field, this textbook, which I learned legal writing from and have continued to assign in my first-year legal writing course, should satisfy readers seeking both breadth and depth. It introduces the legal system and legal writing, the analysis of case law and statutes, large-scale and small-scale organization, and thesis paragraphs. The authors provide a step-by-step approach to the writing and research processes, in addition to devoting separate chapters to special topics
12. A streamlined version of this textbook also is suitable for a basic legal writing course. See RICHARD K. NEUMANN, JR. & SHEILA J. SIMON, LEGAL WRITING (2008).
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including types of legal arguments used in resolving questions of law, interviewing and counseling clients, and letter writing. Like other standard introductory legal writing texts, this book discusses how to compose memoranda, trial briefs, and appellate briefs and how to deliver an oral argument. Chapters and appendices also address the finer points of legal writing style, including effective paragraphs, syntax, and grammar. 9. Robin Wellford Slocum, Legal Reasoning, Writing, and Persuasive Argument (2d ed. 2006). Professor Slocums book discusses a panoply of usual introductory legal writing subjects, such as elementary legal analysis, the American legal system, rule and case evaluation, office memoranda, trial and appellate briefs, and oral argument, but it divides a number of these topics into several chapters offering particularized guidance. For example, the office memorandum is described in ten chapters, with four addressing the discussion section and three addressing memorandum revision for content, organization, syntax, diction, and citation accuracy. Separate chapters detail different types of law- and fact-centered arguments and provide pointers for writing letters to clients or opposing counsel for demand or settlement. 10. Laurel Currie Oates & Anne Enquist, The Legal Writing Handbook: Analysis, Research, and Writing (5th ed. 2010). Spanning nearly 1,000 pages, this legal writing bible consolidates four of the authors textsJust Memos, 13 Just Briefs, Just Research, and Just Writing and is the only introductory legal writing book delving deeply into each of these subjects. Seven books comprise the larger volume: Introduction; Legal Research; Objective Memoranda, Opinion Letters, and Email and Text Messages; Briefs and Oral Argument; A Guide to Effective Writing; A Guide to Correct Writing; and Legal Writing for English-as-a-Second-Language Writers. Practice pointers interspersed throughout the text and short sections on professionalism emphasize legal practice. The introduction overviews the U.S. legal system and provides techniques for effective reading and analysis of statutes and cases, while the legal research section covers constitutional issues, state and federal statutory and regulatory issues, county and city ordinance issues, common law issues, and citator usage. The memoranda section describes strategies for writing memoranda on sophisticated subjects, and the brief chapters discuss motion briefs and appellate briefs. Tips on writing style address eloquence, transitions, paragraphs, syntax, diction, grammar, punctuation, and mechanics.
13. ANNE ENQUIST & LAUREL CURRIE OATES, JUST WRITING: GRAMMAR, PUNCTUATION, AND STYLE LEGAL WRITER (3d ed. 2009); LAUREL CURRIE OATES & ANNE ENQUIST, JUST RESEARCH (2d ed. 2009); LAUREL CURRIE OATES, ANNE ENQUIST & CONSTANCE KRONTZ, JUST BRIEFS (2d ed. 2008); LAUREL CURRIE OATES & ANNE ENQUIST, JUST MEMOS (2d ed. 2007).
FOR THE
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A Compendium of Legal Writing Sources III. INTRODUCTION TO THE STUDY OF LAW
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The legal field has its own reasoning and analytical methods, discourse, and procedures that the sources listed below illuminate in varying levels of depth. The texts introducing legal reasoning and analysis are arranged by perceived complexity, while the following sections about legal reading and case briefing and legal procedure flow logically between sources. A. Fundamentals of Legal Reasoning and Analysis 11. Ruggero J. Aldisert, Stephen Clowney & Jeremy D. Peterson, Logic for Law Students: How to Think Like a Lawyer, 69 U. PITT. L. REV. 1 (2007). This article encapsulates Judge Aldiserts Logic for Lawyers: A Guide to 14 Clear Legal Thinking, explaining rudimentary logical principles applied in the law school classroom as opposed to discussing the intricacies of formal logic or abstract theories of legal thinking. Deductive reasoning, inductive generalization, and reasoning by analogy receive attention, with caveats about the limitations of these techniques offered to guide the scrupulous legal writer. 12. David S. Romantz & Kathleen Elliot Vinson, Legal Analysis: The Fundamental Skill (2d ed. 2009). Written primarily for first-year law students, this dense, compact book on legal reasoning explains jargon that may confound novice legal writers. Chapters explore the foundations of legal analysis and rules, and cover inductive analysis and analogical reasoning, deductive analysis and rule-based reasoning, statutory analysis, and policybased reasoning, and other considerations. The text ends by deconstructing the CREAC paradigm (conclusion, rule, explanation, application, and conclusion), an IRAC variant. 13. Patrick M. McFadden, A Students Guide to Legal Analysis: Thinking Like a Lawyer (2001). Demystifying legal analysis for the beginning law student, Professor McFadden posits that three questions recur in legal disputes: Is there a law? Has it been violated? What will be done about it? Using a sustained case example, chapters examine each of these questions involving the existence of a right or obligation, liability, and remedies before briefly describing legal argumentation. 14. Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning (2009). Unlike the preceding texts in this section, whose target audience is first-year law students, Professor Schauers book intensely probes law and a range of legal reasoning techniques, ensuring its utility for advanced law students, legal scholars, and practitioners. Judge Richard
14. RUGGERO J. ALDISERT, LOGIC FOR LAWYERS: A GUIDE TO CLEAR LEGAL THINKING (3d ed. 2001).
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Posner and several acclaimed law professors laud the books original perspective in covering traditional topics for this genre, including rules, precedent, authorities, analogical reasoning, the common law, statutory interpretation, legal realism, judicial opinions, the distinction between rules and standards, legal facts, and burden of proof concerns. 15. Wilson Huhn, The Five Types of Legal Argument (2d ed. 2008). Professor Huhn delineates five categories of legal argumentstext, intent, precedent, tradition, and policyand explains tactics for identifying, creating, evaluating, and critiquing each one through examples from judicial opinions. Intra-type attacks and cross-type arguments are discussed at length, and the books theoretical construct is logically tested after Huhn establishes its premises. Huhns artful interweaving of theory and practice has led several leading law schools to assign this text. Its systematic exploration of the strengths and weaknesses of each argument type, based on the different structure and evidentiary support underpinning each, affirms that its insights can help advanced legal writers craft more cogent legal arguments. 16. Michael A. Berch et al., Introduction to Legal Method and Process: Cases and Materials (5th ed. 2010). This comprehensive casebook describes the legal system; case synthesis; statutory interpretation; and the role of attorneys, courts, and the legislature in conflict resolution. With a more expansive scope than the other texts listed in this section, Professor Berchs book covers civil and criminal law topics, including the progression of a criminal case, and dissects a single legal dispute to familiarize readers with the manifold procedural decisions at each stage of litigation. B. Legal Reading and Case Briefing 17. Orin S. Kerr, How to Read a Legal Opinion: A Guide for New Law Students, 11 GREEN BAG 2d 51 (2007), available at http://ssrn.com/abstract =1160925. This accessible essay helps beginning law students understand what a judicial opinion is, how it is structured, what terminology it employs, and how it should be evaluated, especially while preparing for class. 18. Ruth Ann McKinney, Reading Like a Lawyer: Time-Saving Strategies for Reading Law Like an Expert (2005). Citing statistics that corroborate their experiences, law professors often bemoan students inability to read crit15 ically. Without close reading skills, legal writers lack the foundation for
15. Debra Moss Curtis & Judith R. Karp, In a Case, in a Book, They Will Not Take a Second Look!: Critical Reading in the Legal Writing Classroom, 41 WILLAMETTE L. REV. 293, 294 (2005) (citing anecdotal evidence of passive reading); NATL EDUC. ASSN, TO READ OR NOT TO READ: A QUESTION OF NATIONAL CONSEQUENCE 56 (2007), http://www.nea.gov/research/toread.pdf (updating the Reading at Risk report and warning that the alarming drop in reading ability and the habit of regular reading among college graduates creates a downward spiral of social, economic, civic, and cultural decay that threatens American democracy);
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drafting cohesive, forceful legal arguments, and this book concentrates exclusively on mastering legal reading in the law school and legal practice contexts, where legal writers may read hundreds of thousands of pages during their professional lifetime. 19. John Delaney, Learning Legal Reasoning: Briefing, Analysis and Theory (3d ed. 2006). After introducing law school, law, the U.S. legal system, and legal reasoning, this book presents a six-step process for briefing judicial opinions, complete with guidelines for each step. Case briefs of varying quality and complexity illustrate how the guidelines operate in practice and define terms encountered in first-year doctrinal courses (contracts, torts, civil procedure, and constitutional law). The texts final chapter offers a primer on jurisprudential perspectives, including positivist, pragmatic, policyoriented, natural law, and other prisms through which judges evaluate cases. C. Legal Procedure 20. Judith Giers, Providing Procedural Context: A Brief Outline of the Civil Trial Process, 12 PERSP. 151 (2004). This synopsis of the civil trial process is a useful supplemental handout for first-year law students or other legal writers needing a procedural refresher, describing how a civil lawsuit advances from the pre-filing stage to the appellate stage, if necessary. 21. Amy E. Sloan, Appellate Fruit Salad and Other Concepts: A Short Course on Appellate Process, 35 U. BALT. L. REV. 43 (2005). This article highlights three vital procedural issues for every appeal: (1) who has standing to appeal, (2) when appellate jurisdiction exists (with a fruit salad analogy being used to explain the final order doctrine), and (3) how much deference the appellate court accords to the lower courts decision in light of the applicable scope and standard of review. Federal criminal law and civil law problems test readers understanding of appellate procedural intricacies elucidated in the article. 22. R. Christopher Lawson, Seeing the Appellate Horizon: Civil Trial Strategy and Standards of Review in the Eighth Circuit, 4 J. APP. PRAC. & PROCESS 561 (2002). This practice notes explanation of how standards of review should shape civil trial strategy focuses on the applicable review standards in the U.S. Court of Appeals for the Eighth Circuit. Its framework for analyzing the different standards for a host of pre-trial, trial, and post-trial rulings is instructive for any legal writer interested in the degree of deference afforded various trial court decisions on appeal.
NATL EDUC. ASSN, READING AT RISK: A SURVEY OF LITERARY READING IN AMERICAEXECUTIVE SUMMARY 6 (2004), available at http://www.nea.gov/pub/ RaRExec.pdf (demonstrating an accelerating decline in young adult literary readers in the past twenty years).
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The sources listed in this section primarily will assist law students and legal writing professors teaching their students how to synthesize cases and organize the discussion of a single legal issue; however, other legal writers also may find utility in the texts explanations of important pre-writing steps for trenchant legal writing. The first set of articles below discusses case synthesis techniques, while the following set of articles describes small-scale organizational tips with reference to the CREAC paradigm and other IRAC var16 iants. A. Case Synthesis 23. Jane Kent Gionfriddo, Thinking Like a Lawyer: The Heuristics of Case Synthesis, 40 TEX. TECH L. REV. 1 (2007). Written for attorneys and law professors, this article discusses the theory and practice of case synthesis for objective and persuasive legal documents. An extensive example illustrates how the suggested methodology for case synthesis operates, considering explicit rules before gleaning implicit rules from opinions and harmonizing hypothetical synthesized rules with the outcomes of precedential cases. 24. Deborah Shore, A Revised Concept Chart: Helping Students Move Away from a Case-by-Case Analysis, 11 PERSP. 123 (2003). To help their students synthesize cases, legal writing professors often use concept charts arraying cases vertically and facts, factors, and outcomes of the cases horizontally. However, this case listing approach promotes case-by-case, as opposed to rule-based, analysis, while the revised concept chart presented in this article facilitates case synthesis by arranging factors vertically and factor-related facts, factor outcomes, and case names horizontally. 25. Craig T. Smith, Teaching Synthesis in High-Tech Classrooms: Using Sophisticated Visual Tools Alongside Socratic Dialogue To Help Guide Students Through the Labyrinth, 9 PERSP. 110 (2001). The author concentrates on high-tech pedagogical techniques for legal writing professors teaching visual learners case synthesis, but the articles sample rule synthesis funnel chart (a flowchart) may assist other legal writers searching for a nifty
16. I elide arguments on whether one IRAC variant is inherently superior to the others, a longstanding matter of contention among legal writing professors, and instead here list the sources I use to teach smallscale organization. Most critically, legal writers should draft cohesive, compelling analyses, with an explanation of rules preceding application of those rules for each legal issue. For a brief exposition of the numerous small-scale organizational paradigms taught by legal writing professors today, see Gerald Lebovits, Cracking the Code to Writing Legal Arguments: From IRAC to CRARC to Combinations in Between, 82 N.Y. ST. BAR ASSN. J. 64 (2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1650923. The debate over IRACs efficacy caused The Second Draft, the Legal Writing Institutes bulletin, to balloon to twice its typical length in November 1995, and readers intrigued by this debate may wish to peruse that issue. See Legal Writing Inst., Bulletin of the Legal Writing Institute, 10 SECOND DRAFT 1 (1995), available at http://www.lwionline.org/publications/seconddraft/nov95.pdf.
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alternative to the traditional case concept chart. B. Small-Scale Organization 26. Scott Fruehwald, Legal Argument and Small-Scale Organization, Hofstra Univ. Legal Studies Research Paper No. 07-11 (2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=979656. Using four categories, Professor Fruehwald divides legal arguments as follows: rule-based reasoning, reasoning by analogy, distinguishing precedent, and policy-based reasoning. Referring to the small-scale organizational scheme he teaches conclusion, rule, rule explanation, rule illustration(s), rule application, and case comparison(s)Fruehwald explains why any IRAC variant a legal writer uses should encompass the different types of legal arguments the writer relies upon. 27. Terry Jean Seligmann & Thomas H. Seymour, Choosing and Using Legal Authority: The Top 10 Tips, 6 PERSP. 1 (1997). For legal writers perturbed at the prospect of sifting through voluminous research to determine which authorities to cite in the R (rule) part of the IRAC paradigm, the authors provide ten tips ranging from identifying relevant legal sources to discerning when to cite minimal authority for a legal proposition. 28. Mark E. Wojcik, Add an E to Your IRAC, 35 STUDENT LAW. 26 (2006), available at http://ssrn.com/abstract=1196462. This student-friendly piece offering law exam advice informs its audience how to explicate rules in the E (explanation of the rule) part of the recommended IREAC paradigm (issue, rule, explanation, application, conclusion); explanatory options include public policy, exemplification, and definition. 29. Susan Hanley Duncan, Crafting Analogies and Distinctions that Work, 72 KY. BAR ASSN BENCH & BAR (Nov. 2008), available at http:// ssrn.com/abstract=1260829. This short handout for law students describes each component of the CREAC paradigm and lists three recurrent errors in the A (application of the rule) part of the paradigm, focusing on mistakes that result in tenuous analogies and distinctions. 30. Stephanie Roberts Hartung & Shailini Jandial George, Promoting In-Depth Analysis: A Three-Part Approach to Teaching Analogical Reasoning to Novice Legal Writers, 39 CUMB. L. REV. 685 (2008). While this article is intended for legal writing professors, its four-step construct for analogical analysis, based on Romantz and Vinsons Legal Analysis: The Fundamental 17 Skill, should help other legal writers reason by analogy more effectively.
17. DAVID S. ROMANTZ & KATHLEEN ELLIOT VINSON, LEGAL ANALYSIS: THE FUNDAMENTAL SKILL
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Excerpts from a sample memorandum identify and critique common analytical pitfalls in each step of the construct. 31. Kathryn A. Sampson, Adverse Authority: Rationales and Methods for Using It to Strengthen Legal Argument, 1999 ARK. L. NOTES 93 (1999), available at http://ssrn.com/abstract=1180654. This note, drawn from the authors experience teaching legal writing, emphasizes when and how adverse authority should be disclosed in court documents, but its prescriptions are equally valid for legal writers drafting objective documents. After stressing the ethical obligation to cite potentially harmful authorities in certain instances, the article catalogues techniques for confronting these authorities with examples from diverse areas of law. V. OBJECTIVE LEGAL MEMORANDA Law students and newly minted lawyers often share anxiety about composing legal memoranda, a standard early assignment for them in the academic and practice contexts. The books listed below, which discuss memorandum drafting in detail, should help allay their concerns and edify more seasoned legal writers. The following three articles distill the books by summarizing the memorandum writing process while the last two articles focus solely on revision, an oft-fatally neglected step in composition. A. Books on Legal Memoranda 32. John Bronsteen, Writing a Legal Memo (2006). This succinct, practical guide has been adopted by many legal writing instructors at top-tier law 18 schools, such as the University of Chicago. Chapters review the American legal system, present principles of effective writing, explain how to compose a legal memorandum, and provide guidance on legal research and citation. 33. Wayne Schiess, The Legal Memo: A Basic Guide (2008). Another slim volume on memorandum composition, this book by a longtime instructor and author on legal writing is aimed at beginning legal writers and acquaints them with the context of a memorandum and conventions governing its drafting. 34. Christine Coughlin, Joan Malmud & Sandy Patrick, A Lawyer Writes: A Practical Guide to Legal Analysis (2008). Sharing the pragmatic orientation of the preceding text, this book places readers in the position of a first-year attorney tasked with writing a memorandum. The first two-thirds of
(2d ed. 2009). 18. The University of Chicago Book List (2010), http://www.law.uchicago.edu/files/file/Atumn% 202010_0.pdf (last visited March 16, 2011).
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the book cover elementary topics such as sources and systems of law, legal reading, and small-scale organization. The final third of the book discusses the sections in a typical memorandum (question presented, brief answer, statement of facts, discussion, and conclusion), offers hints for revision and professional e-mail correspondence, and presents sample memoranda varying in their efficacy. B. Articles on Legal Memoranda 35. Kevin H. Smith, Practical Jurisprudence: Deconstructing and Synthesizing the Art and Science of Thinking Like a Lawyer, 29 U. MEM. L. REV. 1 (1998). This essay on practical jurisprudence is intended for four audiences: new attorneys, law students, academic support program directors, and law professors. Based on the authors experiences with neophyte lawyers struggling to reason through complicated legal problems, the essay assumes the perspective of a budding associate assigned a memorandum. Considerations in evaluating the hypothetical fact pattern provided by the partner follow: (1) the context of legal analysis; (2) the organization and assessment of complex fact patterns; (3) the statement and organization of legal issues; (4) the location, interpretation, statement, and organization of legal rules; (5) the many forms of doctrine: rules, standards, simple balancing tests, general principles, and policy; (6) the statement and placement of authority; and (7) the promulgation of arguments in the alternative to reach a conclusion. 36. Amy R. Stein, Helping Students Understand that Effective Organization Is a Prerequisite to Effective Legal Writing, 15 PERSP. 36 (2006). This articles title belies its broader utility; the authors methodical approach to composing a legal memorandum can assist any legal writer grappling with organizational and time-management problems. The five suggested steps of scheduling, research, pre-writing, writing, and post-writing usefully parse what can be a daunting process. 37. Mark Gannage, Structure Your Legal Memorandum, 8 PERSP. 30 (1999). This article by a practitioner provides a recommended organizational framework for a memorandum, bulleting suggestions for each section: caption, table of contents, background, facts, assumptions, issue(s), conclusion(s), legislation, discussion or analysis, sources consulted or research checklist, and appendices. 38. Brooke J. Bowman, Learning the Art of Rewriting and EditingA Perspective, 15 PERSP. 54 (2006). The author divides the writing process into four stagespre-writing, drafting, revising, and polishingfocusing on the latter two in this terse article. A multiple pass-through technique ensures that writers correct macro-scale, content-related problems in their writing
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(substance and organization) before remedying micro-scale, mechanical problems (syntax, diction, grammar, citations, and typographical mistakes). 39. Terry Jean Seligmann, Why is a Legal Memorandum like an Onion?A Students Guide to Reviewing and Editing, 56 MERCER L. REV. 729 (2004). Although law students are this articles avowed audience, other legal writers may benefit from the authors guidelines for revising a memorandum or peeling the onion. For a tear free memorandum, the article suggests five layers of review that track the legal readers priorities: macro issues (the thesis paragraph and flow of the discussion section), legal logic, more minute concerns (paragraphs and sentences), neatness (grammar, citations, and typographical errors), and a final reassessment (the onion skin). VI. PERSUASIVE LEGAL WRITING AND APPELLATE ADVOCACY Persuasive legal writing, at the trial or appellate level, is usually taught in the second or third semester of a legal writing course sequence, and it is an imperative skill for practitioners. Recognizing the subjects immensity, experienced legal writers have memorialized their insights on persuasive writing and appellate advocacy for decades, resulting in a vast literature devoted to 19 argumentative legal writing. I thus could have quintupled the following source list but instead selected a manageable number of noteworthy books and articles for the readers study. Because my bibliography centers on legal writing, this section omits works on oral trial advocacy techniques but includes introductory and more sophisticated books suitable for legal writing courses teaching persuasion and practitioners striving to become more potent advocates. The volumes are arranged by perceived complexity, with the final books listed providing persuasive pointers and models, assuming background knowledge on the basics of writing as an advocate. The following articles crystallize brief-writing principles elaborated upon in the books and offer tips on specific substantive and stylistic aspects of a legal brief. Other professors have published annotated 20 bibliographies on rhetorical theorys relation to legal writing and persua21 sions theoretical role in legal writing. Readers interested in those subjects are encouraged to consult the cited bibliographies.
19. See Helen A. Anderson, Changing Fashions in Advocacy: 100 Years of Brief-Writing Advice, 11 J. APP. PRAC. & PROCESS 1, 2 (2010). 20. See, e.g., Michael R. Smith, Rhetoric Theory and Legal Writing: An Annotated Bibliography, 3 J. ASSN LEGAL WRITING DIRS. 129 (2006), available at http://www.alwd.org/JALWD/Archives/2006/pdf%20 files/Smith.pdf (discussing classic and contemporary rhetoric). 21. See, e.g., Kathryn Stanchi, Persuasion: An Annotated Bibliography, 6 J. ASSN LEGAL WRITING DIRS. 75 (2009), available at http://www.alwd.org/JALWD/CurrentIssues/2009/pdfs/stanchi.pdf (covering works that analyze how or why something persuades, as opposed to what is persuasive, and encompassing classic and contemporary rhetoric and theories of narrative and argumentation).
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A. Books on Elementary Persuasive Legal Writing or Appellate Advocacy 40. John T. Gaubatz & Taylor Mattis, The Moot Court Book: A Student Guide to Appellate Advocacy (3d ed. 1994). I taught persuasive legal writing and oral argument for four years using this text, and my students appreciated its brevity and directness. The book assumes student knowledge of legal research and writing fundamentals, including citation form, and is designed for the first- or second-year law student assigned an appellate moot court problem. Chapters introduce the moot court experience and each substantive component of an appellate briefthe statement of the case, issues, headings, body of the argument, summary of the argument, and conclusionin a brisk eighty pages, with the remainder of the book discussing oral argument and reproducing sample briefs. 41. Michael R. Fontham, Michael Vitiello & David W. Miller, Persuasive Written and Oral Advocacy in Trial and Appellate Courts (2d ed. 2007). Using a hypothetical case file, this text covers motions practice in trial and appellate courts, as well as appellate briefing and oral argument. Its four parts introduce persuasive legal writing, offer strategies to excel in oral argument, describe how to prepare memoranda for trial courts, and provide tips for handling appeals and writs. 42. Mary Beth Beazley, A Practical Guide to Appellate Advocacy (3d ed. 2010). Professor Beazley familiarizes readers with appellate jurisdiction and standards of review before presenting a step-by-step approach to drafting an appellate brief, complete with four annotated briefs implementing the texts recommendations. Chapters discuss pre-writing, including research; large- and small-scale organization; effective use of authority; self-grading; formatting; substantive brief components, including questions presented, statement of the case, point headings, argument, and summary of the argument; readability; persuasive techniques; polishing; oral argument; and moot court competitions. 43. Carole C. Berry, Effective Appellate Advocacy: Brief Writing and Oral Argument (4th ed. 2009). Students in an appellate advocacy or persuasive legal writing course and practitioners inexperienced in appellate advocacy should garner wisdom from this book, which includes traditional subjects for this genre: the decision to appeal; technicalities of the appeal; a primer on persuasion; preparation for brief writing; composition of the opening, appellee, and reply briefs; preliminary considerations before argument; preparation for and presentation of an oral argument; post-argument memoranda, briefs, and petitions for rehearing; and sample briefs.
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B. Books on Advanced Persuasive Legal Writing or Appellate Advocacy 44. Edward D. Re & Joseph R. Re, Brief Writing and Oral Argument (9th ed. 2005). Justice Burger, who served as the chief justice from 1969 to 1986, endorsed an earlier edition of this classic text, originally published in 1951. The current edition is co-authored by the late distinguished jurist and professor Edward Re (19202006) and his son Joseph Re, a successful litigator, providing academic, judicial, and practical perspectives on the craft of brief writing and oral argument. Law students transitioning to practice are the books envisioned audience, and the texts topics span from the lawyers professional responsibility to legal writing and preliminary considerations; an introduction to law and the appellate process; opinion, claim, and demand letters; trial and post-trial briefs; memoranda of law; appellate brief writing; respondent and reply briefs; oral argument; and legal citation. 45. American Bar Association Section of Litigation, A Practitioners Guide to Appellate Advocacy (Anne Marie Lofaso ed., 2010). Written for practitioners, this recently published volume guides lawyers through the thicket of appellate process with advice from experts in private practice, government, and academia. Topics include: the appellate courts role in the federal judiciary; professionalism and ethics in appellate advocacy; preservation of issues for appeal; jurisdiction; standard of review; electronic and initial filing; settlement of cases on appeal; the record on appeal and the joint appendix; the appellate brief including introduction, statement of the issues, substantive statements, and summary of the argument; inter-jurisdictional certification; oral argument; and post-briefing, post-argument, and postdecision filings. Although the text focuses on federal appealsexamining circuit variations in local rules governing motions, mediation, briefs, oral argument, appendices, and publication of decisionsit should assist all practitioners seeking a comprehensive, accessible book about appellate advocacy. 46. Ralph Adam Fine, The How-to-Win Appeal Manual: Winning Appellate Advocacy in a Nutshell (2d ed. 2008). In this manual, Judge Fine explains how an advocate can prevail on appeal, in light of his experiences as a jurist on the Wisconsin Court of Appeals since 1988 and the Milwaukee County Circuit Court from 1979 to 1988. The book lucidly articulates the judicial mindset on appeal and discusses how awareness of an appellate judges frame of mind should shape an appellate attorneys brief and oral presentation. Subjects raised include the appellate process, keys to drafting an exceptional brief and avoiding traps that ensnare unwary appellate advocates, and secrets of a winning oral argument. A thorough analysis of actual civil and criminal appellate briefs follows, along with exercises to practice the principles exhorted in the text.
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47. Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument (2d ed. 2003). Judge Aldisert, a forty-year veteran of the U.S. Court of Appeals for the Third Circuit and a prolific authority on legal writing, has won numerous plaudits for this bookJustice Brennan, who served from 1956 to 1990, extolled an earlier edition, and the Ninth Circuits Chief Judge Alex Kozinski has echoed the praise more recently. In this revised edition, Judge Aldisert offers dozens of judicial perspectives on the hallmarks of compelling appellate advocacy. Law schools have adopted his book for appellate advocacy courses, and practitioners have consulted it to better apprehend the context of appellate review, technical requirements for briefs, and the nuts and bolts of brief writing and preparing and delivering an oral argument; the final chapters checklists for briefs and oral arguments also have proven popular. 48. Frederick Bernays Wiener, Briefing and Arguing Federal Appeals (3d prtg. 2009). This reprint of Wieners pioneering book on federal appellate advocacy, first published in 1961, may be written in a more antiquated style than the modern texts listed in this section, but as a landmark work in the field, it endures as critical reading for appellate advocates. The book is not a practice manual or text on federal appellate procedure, instead describing how attorneys can draft briefs and deliver oral arguments that will enable them to win on appeal in federal courts. Fourteen chapters containing a total of 180 sections allow readers to easily locate answers to particular questions on the discussed topics, some of which are pertinent to advocates in state courts or federal trial courts: (1) factors conditioning an appeal; (2) the briefing of an appeal, including essentials about each section, writing and research tips, and finer points; (3) the oral argument of an appeal, including fundamentals, suggestions, and finer points; (4) strategies after losing on appeal, such as rehearings and potential new counsel; and (5) illustrative examples of a statement of facts, two petitions for rehearing, and an annotated oral argument. 49. Steven D. Stark, Writing to Win: The Legal Writer (1999). As a former legal writing instructor at Harvard Law School, Stark has recorded his collected insights from a dozen years of teaching and reading legal writing in this book. Each chapter begins with a set of rules, and the book itself commences by describing the fundamentals of legal writing and argumentation for all lawyers before continuing on to writing in the litigation context and legal practice. Forms of legal writing discussed include trial and appellate briefs, complaints, answers, discovery documents, memoranda, letters, e-mails, contracts, and rules. Examples from attorneys and professionals in other fields illustrate the eloquence Stark advocates and the ineffective writing he decries.
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50. Kenneth F. Oettle, Making Your Point: A Practical Guide to Persuasive Legal Writing (2007). Oettle is a partner who chairs his law firms writing program, and this book compiles highlights from his four years of persuasive legal writing columns for the New Jersey Law Journal. Oettle describes persuasive techniques apt for a multitude of legal documents, not concentrating solely on briefs. Nine chapters subdivided into easily digestible three-page sections discuss the composition process, strategy, primacy, logic, perspective, emphasis, conventions, and institutional concerns. 51. Bryan A. Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2d ed. 2004). A diverse audience can learn from this gem of a book. I assigned excerpts from it while teaching an undergraduate legal writing course and a first-year legal writing course, and numerous practitioners have applauded its cogency and accessibility. Garners text catalogues 100 techniques to improve brief quality, beginning each tip with supporting quotations from judges, academics, or acclaimed authors. Garner then scrutinizes the tip under discussion and provides before-and-after examples from actual briefs on the tips subject, which could be a major topicfor example, planning the briefor a minor onefor example, avoiding repetition. 52. Maria L. Ciampi & William H. Manz, The Question Presented: Model Appellate Briefs (2000). Designed as a supplemental text for persuasive legal writing classes, but also edifying for practitioners, this book succinctly introduces appellate advocacy techniques and proceeds to the annotated exemplary briefs, which involve criminal law, constitutional law, and statutory interpretation. Each brief is accompanied by a court opinion that demonstrates how a compelling brief can leave a lasting imprint on the development of law. C. Articles on General Persuasive Legal Writing or Appellate Advocacy Techniques 53. Raymond P. Ward, How to Write an Appellate Brief (2006), http://raymondpward.typepad.com/newlegalwriter/files/HowToWriteAnAppel lateBrief.pdf. Written for an associate who is delegated brief-writing responsibilities, this article by an appellate attorney explains how the associate should approach the assignment: learn the rules, become familiar with the case, learn the record (procure, study, and summarize it), outline the facts, make a chronology, conduct thorough legal research (know the applicable standard of review, be efficient, and outline research), analyze each issue, narrow the issues, outline the brief, compose the first draft, refine the first draft, and submit the brief on time.
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54. Stephanie A. Vaughan, Persuasion Is an Art . . . But It Is Also an Invaluable Tool in Advocacy, 61 BAYLOR L. REV. 635 (2009). This practical article, written by a legal skills professor and moot court coach, establishes the foundations of legal advocacy before elaborating on considerations specific to written and oral advocacy, guiding the reader through the complete process of drafting and orally presenting a persuasive argument for a client. 55. Clyde H. Hamilton, Effective Appellate Brief Writing, 50 S.C. L. REV. 581 (1998). Included in the South Carolina Law Reviews symposium on the art of advocacy, this article by a judge on the U.S. Court of Appeals for the Fourth Circuit dissects a portion of Federal Rule of Appellate Procedure 28, which establishes requirements for appellant and appellee briefs. Judge Hamilton focuses on seven crucial components of a federal appellate brief and unpacks the related prescriptions in Rule 28. These components are the jurisdictional statement, the statement of the issues presented for review, the statement of the case, the statement of facts, the summary of the argument, the argument, and a short conclusion. 56. Jacques L. Wiener, Jr., Ruminations from the Bench: Brief Writing and Oral Argument in the Fifth Circuit, 70 TUL. L. REV. 187 (1995). Like the preceding text, this essay is composed by a federal circuit judge, and it analyzes each major substantive section of a federal appellate brief before offering remarks on presenting a convincing oral argument. Some of the judges ruminations may interest only practitioners with cases in the Fifth Circuit, but most of the essay provides sound advice for all appellate advocates. 57. Jim Regnier, Appellate Briefing: A Judicial Perspective, 11 PERSP. 72 (2003). Former Justice Regnier of the Montana Supreme Court condensed his views on successful appellate briefing into this three-page article, intended primarily for legal writing students and instructors but serving as a useful checklist for practitioners. Recommendations include knowing the audience, developing a strategy on appeal, knowing the rules, and writing persuasively. Special considerations for the appellants brief, the respondents brief, and the reply brief follow this discussion. 58. Frederick Bernays Wiener, Essentials of an Effective Appellate Brief, 17 GEO. WASH. L. REV. 143 (1948). For readers disinclined to pore 22 over Wieners tome on effective brief-writing, this classic article provides the pith of the advice from that longer work, offering, in the authors words, concrete and detailed recommendations grounded in his experiences as a military lawyer and an assistant to the solicitor general. Wieners precepts for
22. See generally FREDERICK BERNAYS WIENER, BRIEFING AND ARGUING FEDERAL APPEALS (1961).
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effective appellate brief-writing, illustrated with ample examples, range from complying with court rules to conveying conviction that allays the readers doubts and satisfies the readers curiosity. 59. Sarah E. Ricks & Jane L. Istvan, Effective Brief Writing Despite High Volume Practice: Ten Misconceptions that Result in Bad Briefs, 38 U. TOL. L. REV. 1113 (2007). Recognizing that practitioners with imminent deadlines may take shortcuts that undermine the persuasiveness of their briefs, the authors highlight ten misconceptions about brief writing and list remedies that will enhance a busy judges comprehension of a brief. Topics discussed span from organization to ethical considerations. 60. Jonathan K. Van Patten, Twenty-Five Propositions on Writing and Persuasion, 49 S.D. L. REV. 250 (2004). This straightforward article fulfills its promise, offering a bevy of organizational, substantive, and stylistic recommendations for more compelling legal writing. D. Articles on Specific Persuasive Legal Writing or Appellate Advocacy Techniques 61. Beverly J. Blair, Ethical Considerations in Advocacy: What FirstYear Legal Writing Students Need to Know, 4 J. LEGAL WRITING INST. 109 (1998), available at http://www.law2.byu.edu/law_library/jlwi/archives/1998/ bla.pdf. This article seeks to facilitate the transition from objective to persuasive writing for first-year legal writing students, emphasizing three ethical considerations for advocatescandor, honesty, and credibilityand how a legal writer may violate these ethical rules, referring to cases in which courts sanctioned attorneys. 62. Brian J. Foley & Ruth Anne Robbins, Fiction 101: A Primer for Lawyers on How To Use Fiction Writing Techniques to Write Persuasive Facts Sections, 32 RUTGERS L.J. 459 (2001). This path-breaking, frequently cited article invigorated the applied legal storytelling movement, which applies storytelling elements to the practice and pedagogy of law. The authors discuss how a lawyer can narrate a compelling story in a facts section, often the most important part of a brief, by remaining conscious of the roles that character development, conflict, resolution, organization, and point of view play in the readers evaluation of a factual story. Appendices with worksheets enable legal writers to apply the techniques presented to their own cases. 63. Jennifer Sheppard, Once upon a Time, Happily Ever After, and in a Galaxy Far, Far Away: Using Narrative To Fill the Cognitive Gap Left by Overreliance on Pure Logic in Appellate Briefs and Motion Memoranda, 46 WILLAMETTE L. REV. 255 (2009). Recognizing that rule-based reasoning
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dominates legal instruction and practice but is only one component of a suc23 cessful appeal based on Aristotles classic rhetorical model, Sheppard proposes that legal writers employ narrative strategies to persuade judges (hypothetical or real) in appellate briefs and motion memoranda. After establishing the theoretical basis for this contention, the article catalogues effective storytelling techniquescharacter, conflict, plot, point of view, setting, theme, voice, and styleand maps these onto the typical sections of an appellate brief or motion memorandum. It is followed by an extensive evaluation of 24 Abe Fortas argument from Gideon v. Wainwright, the U.S. Supreme Court case that established an indigent state criminal defendants right to counsel. 64. Ellie Margolis, Closing the Floodgates: Making Persuasive Policy 25 Arguments in Appellate Briefs, 62 MONT. L. REV. 59 (2001). Reflecting on her legal writing students vague policy reasoning and the scattershot approach to teaching this distinct form of analysis in most legal writing and doctrinal courses, the author explicates four types of policy argumentsjudicial administration, normative, institutional competence, and economicand describes how to bolster the arguments efficacy by anchoring them in legal or, if necessary, non-legal authority. 65. Scott P. Stolley, 20 Tips for Writing Shorter Briefs, DALL. BAR ASSN HEADNOTES, Apr. 2009, at 11. Following his own advice, the author, who heads the appellate practice group at his firm, lists and explains twenty substantive and stylistic suggestions in less than one page. VII. ORAL ARGUMENT Oral argument is not technically a form of legal writing, but it is part of the curriculum in most legal writing programs because it complements the ap26 pellate brief and is a vital skill for attorneys, especially appellate advocates. Therefore, I have included references to instructive works on oral advocacy below. The first set of texts provides advice from preparation through delivery of an oral argument while the articles listed afterward offer additional tips for more experienced speakers.
23. For Aristotle, an effective appeal encompassed three concepts: ethos (the speakers credibility), pathos (an appeal to the audiences emotions, values, and beliefs), and logos (the messages logical power). Jennifer Sheppard, Once upon a Time, Happily Ever After, and in a Galaxy Far, Far Away: Using Narrative to Fill the Cognitive Gap Left by Overreliance on Pure Logic in Appellate Briefs and Motion Memoranda, 46 WILLAMETTE L. REV. 255, 255-56 (2009). 24. 372 U.S. 335 (1963). 25. This article expands on Margolis contemporaneously published article, intended for legal writing instructors and students, in Perspectives: Teaching Legal Research and Writing. Ellie Margolis, Teaching Students to Make Effective Policy Arguments in Appellate Briefs, 9 PERSP. 73 (2001). 26. Joseph W. Hatchett & Robert J. Telfer III, The Importance of Appellate Oral Argument, 33 STETSON L. REV. 139, 141 (2003) (indicating that oral argument has sometimes led judges on the U.S. Court of Appeals for the Eighth Circuit to change their initial impressions of a case).
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66. James D. Dimitri, Stepping Up to the Podium with Confidence: A Primer for Law Students on Preparing and Delivering an Appellate Oral Argument, 38 STETSON L. REV. 75 (2008). This excellent primer almost renders superfluous a typical first-year legal writing course lecture on oral argument. Addressed to law students but valuable for any oral argument novices, the article sets forth the basics of an oral argument, including its general format, preparatory steps, and delivery with a helpful five-part approach to answering questions from the bench. 67. Henry D. Gabriel, The Preparation and Delivery of Oral Argument in Appellate Courts, 22 AM. J. TRIAL ADVOC. 571 (1998). Drafted by a former appellate litigator for the U.S. Department of Justice, this article assumes that its readers are appellate attorneys and discusses its four topicsthe importance of oral argument, the lawyers twin obligations to the client and the court, the preparation of oral argument, and the delivery of oral argument from a pragmatic perspective. 68. Stephen M. Shapiro, Oral Argument in the Supreme Court of the United States, 33 CATH. U. L. REV. 529 (1983). Although expressly describing the nuances of oral advocacy before the U.S. Supreme Court, this article contains advice appellate attorneys would generally benefit from heeding. Written by a former deputy solicitor general and founding partner of the topranked U.S. Supreme Court and Appellate Litigation practice group at Mayer, Brown & Platt, it details the purposes of oral argument, how to prepare for it and deliver it, and how to categorize and respond to questions from the bench. A separate section explains the respondents argument, rebuttal, and amicus curiae arguments, as well as common mistakes. 69. Alan L. Dworsky, The Little Book on Oral Argument (1991). This petite volume is one of the few books focused exclusively on oral argument, and although law students are its likely audience, practitioners unfamiliar with oral argumentation may find it useful. Subjects covered include nervousness, preparation, style, delivery, substance, structure, questions, and rebuttal, with each topic subdivided into a list of tips that apply to appellate arguments and, to a significant extent, trial court arguments. 70. David C. Frederick, Supreme Court and Appellate Advocacy: Mas27 tering Oral Argument (2d ed. 2010). U.S. Supreme Court Justice Ginsburg drafted the foreword to this book, the pre-eminent text on oral advocacy
27. An abridged version of this book, especially suitable for law students, is also available. See DAVID C. FREDERICK, THE ART OF ORAL ADVOCACY (2003).
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before the U.S. Supreme Court and, more generally, appellate courts. The books author is one of todays foremost appellate advocates, having argued thirty-one cases before the U.S. Supreme Court and at least one case in every 29 federal circuit court. His accumulated wisdom is captured in this updated edition, which retains a perceptive historical overview of oral advocacy as well as a step-by-step discussion of how to prepare for and present an effective oral argument; checklists and model arguments follow in appendices. B. Texts Providing Pointers on Oral Advocacy 71. John W. Davis, The Argument of an Appeal, 26 A.B.A. J. 895 (1940), reprinted in 3 J. APP. PRAC. & PROCESS 745 (2001). Davis (18731955), one of the early twentieth centurys pre-eminent lawyers, argued 140 30 cases before the U.S. Supreme Court. This is Davis classic address to the Association of the Bar of the City of New York. Davis decalogue of oral advocacy begins with the cardinal rule of viewing the case from the courts perspective and ends with the unimpeachable advice to sit down before the allotted time if the argument has run its course. 72. E. Barrett Prettyman, Jr., Supreme Court Advocacy: Random Thoughts in a Day of Time Restrictions, 4 LITIG. 16 (1978). Prettyman, a law clerk to three U.S. Supreme Court justices and counsel in more than 150 U.S. 31 Supreme Court cases, adds to Davis decalogue of recommendations for an oral argument, accounting for the exigencies that lawyers before the U.S. Supreme Court and other appellate courts now face. 73. Gerald Lebovits, Winning Oral Argument: Dos and Donts, 72 QUEENS BAR BULL. 1 (2008), available at http://ssrn.com/abstract =1307741. In this article, Judge Lebovits, who publishes a regular column on legal writing in the New York State Bar Association Journal and teaches trial and appellate advocacy, distinguishes between oral advocacy in the academic and practice contexts, enumerating ten dos and ten donts for attorneys hoping to capitalize on their oral arguments.
28. As an aside, Justice Ginsburgs meticulous legal writing recently garnered accolades from another renowned legal writer, Chief Justice Roberts. See Robert Barnes, Ginsburg Gives No Hint of Giving Up the Bench, WASH. POST, Apr. 12, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/04/11/AR 2009041102297.html?hpid=topnews. 29. See Barristers Council Appellate Div., Appellate Advocacy: From Desk to Podium http://www.law.georgetown.edu/news/advocacy-panel.pdf (last visited Feb. 7, 2011). 30. WILLIAM H. HARBAUGH, LAWYERS LAWYER: THE LIFE OF JOHN W. DAVIS 531 (1973). 31. E. Barrett Prettyman, Jr., HOGAN LOVELLS, http://www.hoganlovells.com/barrett-prettyman/ (last visited Jan. 22, 2011).
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This section lists helpful books for practitioners and students in advanced legal writing classes. The texts, arranged by ostensible complexity, largely discuss how to draft legal documents other than memoranda and briefs taught in first-year legal writing courses. A more extensive bibliography on this subject, organized by document type, is available for readers seeking 32 comprehensive guidance. 74. Michael D. Murray & Christy Hallam DeSanctis, Advanced Legal Writing and Oral Advocacy: Trials, Appeals, and Moot Court (2009). This textbook, by former trial and appellate attorneys and current law professors, embodies their understanding of adversarial legal writing and oral argument in practice. After differentiating adversarial legal writing from objective legal writing, the authors describe the structure and style of a general pre-trial motion before homing in on motions to dismiss and summary judgment motions. An overview of appellate advocacy follows with a chapter on appellate brief writing and a chapter on oral argument encompassing all three stages of litigation: pre-trial, trial, and appeal. A chapter on strategies for moot court and beyond concludes the volume, which is intended for second- or third-semester legal writing students and moot court participants. 75. Mary Barnard Ray & Barbara J. Cox, Beyond the Basics: A Text for Advanced Legal Writing (2d ed. 2003). This book weaves insights from other disciplines and academic and pragmatic perspectives with a description of writing techniques that bolster accuracy, accessibility, and appeal. The authors largely sliver their text by document type, teaching readers how to draft statutes, rules, and other regulations; jury instructions; contracts; issues; objective and persuasive statements of fact; discussion sections of research memoranda; argument sections; pleadings; notices of motion, motions, and orders; interrogatories; general correspondence; opinion letters; wills and trusts; and scholarly articles and other research papers. 76. Michael R. Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing (2d ed. 2008). This textbook for an upper-level legal writing class employs an interdisciplinary approach with contributions from the fields of cognitive psychology, literary and classical rhetorical theory, and moral theory. Unlike the preceding books in this section, which are generally organized by document type, Professor Smiths book tracks the Aristotelian
32. See generally Carrie W. Teitcher, Legal Writing Beyond Memos and Briefs: An Annotated Bibliography, 5 J. ASSN LEGAL WRITING DIRS. 133 (2008) (covering affidavits, alternative dispute resolution, collaborative lawyering, contracts and transaction documents, corporate documents, e-mails, ethics, exam writing, judicial opinion writing, jury instructions and verdict forms, legislation, letters, motions, pleadings, scholarly writing, settlement agreements, and miscellaneous topics).
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modes of persuasion: logos, pathos, and ethos, presenting the conceptual basis underlying each mode and persuasive writing strategies linked to each mode. Other topics include rhetorical style (metaphor, literary allusion, figures of speech, and graphic design) and the ethics and morality of persuasion. 77. Elizabeth Fajans, Mary R. Falk & Helene S. Shapo, Writing for Law Practice (2d ed. 2010). This mammoth book is intended to prepare the reader to write in practice. It consists of three parts corresponding to the three major modes of written communication in the law: litigating (complaints, answers, and motions), informing and persuading (letters, office memoranda, trial and appellate briefs, and judicial opinions), and rule-making (legislation and regulation, contracts, and wills). In each part, fundamental skills are delineated before particular documents relying on those skills are introduced; and for each document type, sections provide background information, describe basic components, explain the composition process and special concerns, and reproduce a sample. IX. LEGAL RESEARCH Exceptional legal writing is the product of exceptional legal research, and the following sources should assist law students, law professors, and practitioners with print and electronic legal research. The sources listed range from texts suitable for novice legal researchers to encyclopedic guides for those conducting more involved legal research. Many law school libraries 34 also have generated outstanding legal research guides. A. Elementary Legal Research Texts 78. Peggy Roebuck Jarrett & Mary Whisner, Here There Be Dragons: How to Do Research in an Area You Know Nothing About, 6 PERSP. 74 (1998). The authors, reference librarians at the University of Washington School of Law, offer tips for law students and other legal writers researching an issue that is terra incognita to them. The articles title refers to the phrase early seafarers used to demarcate unknown territory on maps. Recognizing that researchers have charted many areas of law, the authors describe how to locate these maps: ask questions, use secondary sources, avoid fishing online, use a research guide, look for a loose-leaf service, use current-awareness tools, read the directions, talk to an expert, and use librarians.
33. For a definition of these terms, see supra note 23. 34. For example, UCLAs law library has created a guide to online research beyond LexisNexis and Westlaw. See, e.g., Hugh & Hazel Darling Law Library, Online Legal Research: Beyond LexisNexis and Westlaw, UCLA SCH. LAW, http://libguides.law.ucla.edu/content.php?pid= 34909&sid=256638 (last visited Feb. 7, 2011); Washburn Univ. Sch. Law Library, WashLaw: Legal Research on the Web, http://www.washlaw.edu/ (last visited Feb. 7, 2011).
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79. Robert C. Berring & Elizabeth A. Edinger, Finding the Law (12th ed. 2005). This venerable legal research book by two librarians at UCBerkeley Boalt Hall School of Law assumes readers, often first-year law students, primarily will use Internet-based research tools. Topics covered include the context of legal research, court reports, statutes, legislative history, constitutional law, administrative and executive publications, court rules and practice, secondary authority, and research strategies. Appendices provide state legal research guides and bibliographies and sources of federal regulatory agency rules, regulations, and adjudications. 80. Amy E. Sloan, Basic Legal Research: Tools and Strategies (4th ed. 2009). This popular, user-friendly textbook for beginning legal researchers introduces legal research generally and electronic legal research. Advice for devising a research plan and generating search terms also is included, with chapters at the heart of the text describing specific sources under the following headings: secondary sources, cases, citators, statutes, federal legislative history, federal administrative law, and subject-matter services. Each of these chapters is uniformly organized with an introduction, a discussion of print and electronic research and citation format, sample pages, and a checklist. 81. Christina L. Kunz et al., The Process of Legal Research (7th ed. 2008). This texts accessibility to the incipient legal researcher is comparable to the preceding texts, but its coverage is more expansive. After an overview of legal research and a discussion of how to approach a legal research assignment, the authors compartmentalize sources as follows: secondary sources (encyclopedias, treatises, legal periodicals, American Law Reports annotations, restatements, and other sources), case law (reporters, digests, and their alternatives and case citators), enacted law (codes and session laws and legislative process materials), administrative materials (regulations, agency decisions, and mini-libraries), and rules of procedure and ethics. Each chapter describes at least one source and how to research and cite that source, with a set of research situations and exercises concluding the textbook. 82. Mark K. Osbeck, Impeccable Research: A Concise Guide to Mastering Legal Research Skills (2010). Unlike the three previous books listed in this section, Professor Osbecks reference guide focuses less on introducing specific types of sources and how to locate them than on how legal researchers can avoid many conundrums by developing a systematic research strategy. It also explains how they can disentangle themselves from conundrums that invariably arise during the research process. The book should appeal to law students and attorneys who endeavor to improve their legal research skills to conserve their time and their clients money.
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83. J.D.S. Armstrong & Christopher A. Knott, Where the Law Is: An Introduction to Advanced Legal Research (3d ed. 2009). Often used in ad35 vanced legal research courses, this textbook complements the instruction students receive in a first-year legal research course, expanding upon subjects covered there. Topics include searching, secondary sources, case law and citators, court records, statutes, federal and state legislative history, regulations and administrative law, and international law. 84. Kent C. Olson, Principles of Legal Research (2009). This successor 36 text to the classic How to Find the Law is twenty years in the making, updating the original hornbook with Internet and other electronic sources. The first chapter explains the context and process of research, with subsequent chapters organizing primary authorities based on their fountainheadthe Constitution, the legislature, the executive, and the judiciary. Next, secondary sources are grouped into three parts: (1) encyclopedias, restatements, and texts; (2) periodicals; and (3) reference resources. Chapters on international law and comparative law follow, along with an appendix listing almost 500 major treatises and loose-leaf services by subject. 85. Steven M. Barkan, Roy M. Mersky & Donald J. Dunn, Fundamentals of Legal Research (9th ed. 2009). Although this authoritative legal research book is designed for law students, many first-year students may find its 800-page bulk overwhelming, leading me to classify the text as a more ad37 vanced guidebook. Chapters are formally outlined and arranged based on the jurisprudential approach to legal instruction, with an introduction to legal research, the legal research process, and legal writing being followed by discussions of court reports, constitutional law and the U.S. Supreme Court, federal legislation and legislative histories, state and municipal legislation, court rules and procedures, and administrative law. Secondary authorities referenced include loose-leaf services; citators; legal encyclopedias; American Law Reports; legal periodicals and indexes; treatises, restatements, uniform laws, and model acts; practice materials; and other resources. International law and legal research in the United Kingdom occupy separate chapters, with electronic legal research, legal citation form, federal tax research, and appendices on legal abbreviations, state legal research guides, and legal research in U.S. territories, among other topics, closing out the volume.
35. See, e.g., Univ. Utah S.J. Quinney College of Law, Advanced Legal Research Course Outline (June 15, 2010), available at http://privateweb.law.utah.edu/_personfiles/58/SYLLABI/5143.pdf. 36. MORRIS L. COHEN, ROBERT C. BERRING & KENT C. OLSON, HOW TO FIND THE LAW (9th ed. 1989). 37. An abridged version of this volume, spanning more than 600 pages, is also available. See STEVEN M. BARKAN, ROY M. MERSKY & DONALD J. DUNN, LEGAL RESEARCH ILLUSTRATED (9th ed. 2009); see also STEVEN M. BARKAN, ROY M. MERSKY & DONALD J. DUNN, ASSIGNMENTS TO FUNDAMENTALS OF LEGAL RESEARCH (9th ed. 2009).
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Style is inextricably married to substance in the presentation of legal ar38 To guments, and the consequences of subpar legal writing may be dire. help readers write with more clarity, concision, and verve in the legal writing context, this section lists works concentrating on legal style as opposed to expository style. The first set of books should assist legal writers seeking coverto-cover guidance on how to write more eloquently while the second set of books, arranged by length, includes handbooks and reference guides addressing particular stylistic problems that legal writers may encounter. A. Legal Writing Style Books 86. Richard C. Wydick, Plain English for Lawyers (5th ed. 2005). This 39 legal adaptation of Strunk and Whites quintessential The Elements of Style is a mainstay on my reading list for first-year legal writing students. Professor Wydicks text helped pioneer the movement to extinguish legalese, and it practices what the author preaches, conveying its message in 139 pages. Chapters describe omitting surplus words; using base verbs, not nominalizations; preferring the active voice; using short sentences; arranging and choosing words carefully; avoiding language quirks; and punctuating carefully. 87. Anne Enquist & Laurel Currie Oates, Just Writing: Grammar, Punctuation, and Style for the Legal Writer (3d ed. 2009). This text, one of the few legal style books geared toward beginning legal writers (though instructive to a wider audience), is comprised of three guides: a guide to effective writing, a guide to correct writing, and a guide for English-as-a-secondlanguage writers. Subjects covered include planning, drafting, revising, editing, and it scrutinizes proofreading a legal document, paragraphs, sentences, transitions, grammar, punctuation, and usage. 88. Tom Goldstein & Jethro K. Lieberman, The Lawyers Guide to Writing Well (2d ed. 2002). The authors, a journalism school professor and law school writing program director, crusade against expendable jargon in legal writing and cover the process of writing and management of prose (form, structure, organization, syntax, diction, and revision) from a journalistic perspective. Usage notes and an editing checklist round out the text. 89. Stephen V. Armstrong & Timothy P. Terrell, Thinking Like a Writer: A Lawyers Guide to Effective Writing and Editing (3d ed. 2009). This book encourages readers to envision themselves as professional writers and
38. Wendy B. Davis, Consequences of Ineffective Writing, 8 PERSP. 97 (2000) (summarizing cases in which the abysmal quality of the attorneys writing led to court sanctions, the clients loss of claim, or the clients entanglement in needless litigation). 39. WILLIAM STRUNK, JR. & E.B. WHITE, THE ELEMENTS OF STYLE (4th ed. 1999).
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editors appealing largely to a legal audience. It juxtaposes numerous examples of weak and effective writing to demonstrate the mistakes the authors censure and the techniques to rectify these errors. Clarity is a touchstone principle in the text, with other topics discussed including organization, introductions, paragraphs, syntax, diction, persuasion, and editing. B. Legal Writing Style Handbooks and Reference Guides 90. Deborah E. Bouchoux, Aspen Handbook for Legal Writers: A Practical Reference (2d ed. 2009). This handbook is the legal equivalent of A 40 Writers Reference, the most widely adopted handbook in the United States for academic writers, and it provides Internet resources for each referenced subject. Its five sections discuss writing mechanics (grammar, punctuation, and spelling); the features of effective legal writing and organization; legal documents (correspondence, memoranda, briefs, pleadings, and transactional documents), legal conventions, and legal writing blunders; and post-writing steps and document design. Appendices contain terms and usage glossaries, as well as descriptions of citation form, considerations for English-as-asecond-language writers, and sample case and court briefs. 91. Bryan A. Garner, The Elements of Legal Style (2d ed. 2002). This style guide remains a definitive text in the field with its brevity relative to Garners other style books (two of which follow) perhaps endearing legal writers to it. Chapters set forth fundamental rules of usage (punctuation, diction, grammar, and syntax), fundamental principles of legal writing (brevity, clarity, structural simplicity, organization, and sentence and paragraph construction), various matters of form, words of expression often confused or misused, and rhetorical figures in law (comparison, wordplay, syntactic arrangement, and repetition). An approach to legal style completes the text, with subsections in this chapter recommending that readers develop an individual voice, carefully craft their explanations and arguments, avoid unnecessary jargon, and use expressive tactics. 92. Bryan A. Garner, The Redbook: A Manual on Legal Style (2d ed. 2006). Like the preceding text, this book describes the elements of legal style, but it lists minutiae omitted from shorter legal style guidesrules and guidelines of which even more mature legal writers may be unaware. The first two-thirds of the book cover particular aspects of style: punctuation, capitalization, typeface, document design, numbers, typographic symbols, spelling, citation, footnotes, grammar, legalese, troublesome words, and editing and proofreading. The remainder of the book describes special considerations for the following documents: research memoranda, opinion letters,
40. DIANA HACKER & NANCY SOMMERS, A WRITERS REFERENCE (7th ed. 2010).
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demand letters, pleadings, motions, appellate briefs, and contracts. 93. Bryan A. Garner, A Dictionary of Modern Legal Usage (2d ed. 2001). As this nearly 1,000-page tomes title indicates, it is intended to be a reference for legal writers and a complement to Garners famed Blacks Law 41 Dictionary, not a text to be read cover-to-cover. The topics are arranged alphabetically, explaining hundreds of points on usage. A guide to the volumes essay entries groups subjects under the following headings: style; grammar and usage; legal lexicology and special conventions; word formation, inflection, spelling, and pronunciation; and punctuation and typography. XI. LEGAL CITATION Citation accuracy is a barometer of credible and compelling legal writing, and the sources listed here should enable legal writers to draft citations that conform to applicable rules. 94. The Bluebook: A Uniform System of Citation (Columbia Law Review Assn et al. eds., 19th ed. 2010). This new iteration of the much-reviled but ever-resilient citation guide still contains three major parts: (1) the Bluepages, which have practitioners notes, (2) the Whitepages with citations in law journal publication format, and (3) the tables used in conjunction with the rules. The Bluepages cover basic general rules and the essential rules to cite cases, statutes, rules, regulations, constitutions, court and litigation documents, non-periodic and periodic materials, and the Internet. Rules one through nine of the white pages discuss general rules in more detail than the Bluepages, while rules ten through twenty-one of the Whitepages refer indepth to the same sources as the Bluepages, as well as legislative, administrative, and executive materials; unpublished and forthcoming sources; services; foreign materials; and international materials. 95. Linda J. Barris, Understanding and Mastering The Bluebook: A Guide for Students and Practitioners (2d ed. 2010). For first-year legal writing students and other legal writers stymied by The Bluebooks current organization and explanations, Professor Barris guide should facilitate comprehension of the frequently scattered citation rules. After an introductory chapter consolidating some of The Bluebooks essential general rules, Barris text discusses tips to cite the following specific sources including common errors to avoid: cases, statutes, constitutions, regulations, procedural and court rules, secondary sources, and litigation documents and record citations. A description of more advanced general rulesstrings, signals, and explanatory parentheticals; quotations; capitalization; and numbers, numerals, ordinals,
41. BLACKS LAW DICTIONARY (9th ed. 2009).
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and symbolsconcludes the book. 96. Darby Dickerson, ALWD Citation Manual: A Professional System of Citation (4th ed. 2010). This simplified alternative to The Bluebook, which can seem byzantine to first-year law students, has been adopted by several law schools; its distinguishing feature is a single citation format for practitioners documents and scholarly articles. The books seven parts address the following topics: general terms and procedures, citation basics, rules for print sources, rules for electronic materials, suggestions for incorporating citations into documents, quotations, and appendices including a full text sample memorandum. XII. LAW SCHOOL ASSISTANCE Advisory texts on the law school experience are being published at an 42 exponential rate as law school enrollment rises, tuition increases, and 43 prestigious employment opportunities wane, accelerating pressure on law students to thrive academically. Arranged by length of text, the list below includes works that discuss legal writing strategies while guiding students about how to excel in law school with advice on taking exams, making law review, winning competitions, and selecting and evaluating writing samples for employers. A. Law School Advice Texts 97. Ruta K. Stropus & Charlotte D. Taylor, Bridging the Gap Between College and Law School: Strategies for Success (2d ed. 2009). A number of 44 law schools suggest that incoming first-year law students read this book, as the transition between college and law school often frustrates new law students, many of whom are unaccustomed to independent thinking as opposed to regurgitation. Repeatedly contrasting a typical students undergraduate experience and professional training in legal academia, the authors overview the law school experience; describe how students should read and brief cases; discuss effective note-taking techniques; and, in a series of chapters entitled putting it all together, explain synthesis, outlining, and flowcharting. Two
42. Am. Bar Assn, First Year & Total J.D. Enrollment by Gender (1947-2008) (2008), http://www.abanet.org/legaled/statistics/charts/stats%20-%206.pdf (citing an increase of first year J.D. enrollment from 43,518 in 2000-2001 to 49,414 in 2008-2009, the latest year for which statistics are available). 43. Ameet Sachdev, Law School Tuition Hikes Spark Talk of Bubble, CHI. TRIBUNE, Apr. 27, 2010, http://articles.chicagotribune.com/2010-04-27/business/ct-biz-0427-chicago-law-students--20100427_1_lawschool-law-firms-national-law-journal (reporting that law school tuition increases have outpaced the inflation rate for the past quarter century and that many large law firms with starting salaries of approximately $160,000 per year have been hemorrhaging positions and, according to a law school dean, are unlikely to ever embark on the hiring sprees of years past). 44. See, e.g., Univ. D.C. David A. Clarke Sch. of Law, Suggested Reading for Law Students, available at http://www.law.udc.edu/resource/collection/3079264F-B6E1-4AC6-8837-589279E3A007/suggested_ read ing.pdf (last visited Feb. 7, 2011).
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chapters cover law school examinations, and the books final chapter offers tips on time management, more strategies for success, and suggestions for the second and third years of law school and legal employment. 98. Andrew J. McClurg, 1L of a Ride: A Well-Traveled Professors Roadmap to Success in the First Year of Law School (2008). This books cheeky title captures the authors forthrightness and relatively free-wheeling, humorous spirit in the text; my father, an engineering professor with no legal background, relished the read. Professor McClurg, though, does not compromise substance for entertainment, relying on his experience teaching at a variety of law schools, and input from other law professors and students, to alleviate the anxieties of incoming 1Ls likely to read the book; the text backs nearly all of the advice I would provide new law students with anecdotes and scholarship. McClurgs roadmap to success passes by every landmark of interest to a beginning law student, discussing what to expect during the first year and how to flourish in what can be a pressurized environment. Subjects covered include the top five habits of successful law students, the Socratic method, interactions with professors, case briefing, note taking, outlining, and exam preparation. 99. Austen L. Parrish & Cristina C. Knolton, Hard-Nosed Advice from a Cranky Law Professor: How to Succeed in Law School (2010). This book treads similar terrain as the preceding text in half the space. It also is written in a jocular style, from the perspective of a cantankerous law professor. Chapters describe how to prepare for law school, brief cases, interact with professors, outline, study, and approach final exams. Recommendations for extracurricular activities, employment, and the bar exam follow. 100. Ann L. Iijima, The Law Students Pocket Mentor: From Surviving to Thriving (2007). Professor Iijimas book guides law students from the decision to attend law school through their first legal job, using exercises, worksheets, and checklists to help students approach law school systematically. Law school-related topics include preparing for law school, paying for law school, preparing for class, using knowledge of learning styles to excel academically, reaping maximum benefits from classroom discussions, outlining, shining on exams, making peace with grades, choosing classes and extracurricular activities, and maintaining balance. Later chapters remind students that law school is part of a professional initiation process and describe how they should prepare for their careers in each semester of law school to ultimately thrive in their first jobs. 101. Herbert N. Ramy, Succeeding in Law School (2d ed. 2010). Professor Ramy, Director of Suffolk University Law Schools Academic Support
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Program, wrote this book in response to the flurry of inquiries he received from incoming law students seeking the golden ticket to success in law school. Chapters demonstrate that diligence, knowledge, and a systematic approach are imperative to academic excellence in law school. Topics underscoring the importance of these qualities include the first days of law school; the format of law school classes; maintaining a healthy approach to law school; reading and briefing cases efficiently; note-taking; outlining; legal synthesis; legal analysis; counter-analysis; legal writing; study groups, study aids, and study schedules; and law school exams. Resumes, writing samples, and job interviews are discussed in the books closing chapters. B. Texts on Law School Exam-Taking Techniques 102. Jessica Elliott, Teaching Outlining for Exam Preparation as Part of the First-Year Legal Research and Writing Curriculum, 11 PERSP. 66 (2003). Drawing a nexus between skills taught in a first-year legal writing class and skills required to ace a doctrinal exam, the author lists common student questions about outlining and provides responses in this brief article that can be used as a supplemental handout in legal writing, doctrinal, or academic support classes. Subjects include how to organize an outline, how cases are incorporated into an outline, and how an outline eases preparation for an exam. 103. John C. Dernbach, Writing Essay Exams to Succeed in Law School (Not Just to Survive) (3d ed. 2010). This concise book by a law professor helps students develop the analytical skills to write essays for law school examinations. Topics include the reader; scoring and grading; beginning the process; moving from process to writing; explaining the answer; organizing, signposting, and writing style; getting ready; and parallels between essay examinations and legal practice. Sample essay exam questions in an appendix are followed by dissections of a suggested answer and two weaker answers. 104. John Delaney, How to Do Your Best on Law School Exams (4th ed. 2006). Part of the popular Delaney series for law students, this book by a law professor delves into more detail about essay exam-taking strategies than the preceding text, though covering similar topics. Professor Delaney begins by describing six exam tasks (and corresponding grading criteria), and subsequent chapters discuss how law school exams and legal practice require mastery of the law and how students can outline and spot issues on exams, outline and write lawyerly exam arguments, and avoid common pitfalls. Sample essay exam problems and responses ranging in quality from poor to exemplary demonstrate the exam-writing principles the author espouses in action. 105. Charles R. Calleros, Law School Exams: Preparing and Writing to Win (2007). Professor Calleros background in academic support infuses this
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book, which introduces complex material in a familiar, non-legal context before analogizing to the legal context. The text also recognizes that success on law school exams requires a definitive strategy and concerted effort from the first day of class, if not before. Accordingly, the books opening parts present an overview and a set of law school study techniques; later parts describe how students should prepare for exams by synthesizing cases, outlining, and tailoring their approach to their professor and to the type of exam. 106. Richard Michael Fischl & Jeremy Paul, Getting to Maybe: How to Excel on Law School Exams (1999). Law students, especially first-years, are often apprehensive about responding to exam questions with contingent answers, but the authors suggest that students should understand and embrace this ambiguity to improve test performance. The book, though, is unequivocal in using a sustained analogy to The Wizard of Oz to disabuse students of the notion that they are in a familiar exam situation assessing memorization skills and alert students to the legal and factual issues they will have to identify (the forks in the road). Issue spotting, nuanced analysis, and argument are said to require heart, brains, and courage; and a final part enumerating exam tips and answers to frequently asked questions is subtitled your very own ruby slippers. Four sample essay exam questions and answers from typical first-year subjectstorts, property, constitutional law, and contracts complete the volume. 107. Suzanne Darrow-Kleinhaus, Mastering the Law School Exam (2006). This book by an academic support professional treats exam preparation as a semester-long endeavor and acclimates the reader, likely a law student, to law school exams before describing course outlining, studying for exams, exam-taking essentials, and learning from a disappointing exam grade. The IRAC paradigm is dissected, with troubleshooting tips included for each component of the paradigm, and sample hypothetical essay questions from a variety of first-year and upper-division subjects (business organizations, civil procedure, constitutional law, contracts, criminal law, evidence, property, and torts) are presented with evaluation sheets or sample answers. C. Texts on Law School Competitions 108. Wes Henricksen, Making Law Review: The Experts Guide to Mastering the Write-On Competition (2008). Written by a former executive editor of the Washington Law Review, this book synthesizes the experiences of law review members at several law schools to uncover the secrets to success for write-on competition participants. The books first three chapters discuss what a law review is, what factors students should use in assessing whether to pursue law review membership, and how students can become law review members. The text then overviews and prepares students for the write-on
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competition, instructs them how to draft the submission paper and complete the editing exercise, and offers techniques for composing an intriguing personal statement. 109. Larry L. Teply, Law School Competitions in a Nutshell (2003). While the title of this book may imply a brief treatment of the subject, the 400-page text previews the major types of law school competitionsmoot court, negotiation, client counseling, trial advocacy, and legal writingand discusses mechanical and tactical aspects of the first three at length, relying on the advice of seasoned coaches and other knowledgeable sources. D. Texts on Selecting and Evaluating Writing Samples 110. Herbert N. Ramy, Creating a Writing Sample, Suffolk Univ. Law School Research Paper No. 09-25 (Apr. 24, 2009), available at http://ssrn. com/abstract=1393906. This short article by the Director of Academic Support at Suffolk University Law School is intended to help first-year law students select and revise a writing sample that will demonstrate their analytical skills and enhance their employment application in a challenging legal job market. It responds to frequently asked questions, lists dos and donts, and reproduces portions of a sample memorandum. 111. Mark E. Wojcik, The Right Writing Sample, 37 STUDENT LAW. 1 (2009), available at http://ssrn.com/abstract=1681467. This article underscores the writing samples importance to a prospective legal employer and provides students with guidelines for choosing the best writing samples and editing the selected samples, citing advice from legal writing luminaries. 112. Mary Beth Beazley, How to Read a Writing Sample, 87 ILL. BAR J. 615 (1999). Professor Beazley explains her criteria for evaluating an analytical writing sample, insights that should be candidates and legal employers. Considerations include headings, topic sentences, context, internal conclusions, focus, analysis, use of authority, persuasiveness, and writing skills. XIII. ACADEMIC LEGAL WRITING Academic legal writings format and conventions differ from those used in legal writing for practice, and the articles and books listed below discuss subjects ranging from selecting a topic to disseminating a publication. A. Articles on Academic Legal Writing 113. Gerald Lebovits, Academic Legal Writing: How to Write and Publish, 78 N.Y. ST. BAR ASSN J. 64 (2006), available at http://works.be press.com/cgi/viewcontent.cgi?article=1005&context=gerald_lebovits. Judge
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Lebovits primer on academic legal writing guides the reader through each stage of what can be a cumbersome process, covering subjects from finding a topic, researching, and choosing a structure to drafting, writing, citing, editing, publishing, and publicizing. 114. Richard Delgado, How to Write a Law Review Article, 20 U.S.F. L. REV. 445 (1986). This adaptation of an address on writing a law review article offers advice the author would have found revelatory as a young academic. Professor Delgado describes reasons for composing a law review article, ten types of articles, topic selection, research strategies, citation, drafting, publication, and publicization. 115. Heather Meeker, Stalking the Golden Topic: A Guide to Locating and Selecting Topics for Legal Research Papers, 1996 UTAH L. REV. 917 (1996). Meekers article concentrates on two vital research tasks for academic legal writers: finding a suitable topic and checking for pre-emption; these can be arduous pre-writing steps, especially for law students drafting their first substantial legal paper. A survey of student-run law reviews and personal contact with members of several law reviews informs the article, which ends with appendices containing survey results, a now-obsolete list of specialized legal discussion groups, excerpts of pre-emption policies, and representative note and comment topics for student writers concerned about the scope of a typical student-written law review article. 116. Christian C. Day, In Search of the Read Footnote: Techniques for Writing Legal Scholarship and Having It Published, 6 J. LEGAL WRITING INST. 229 (2000). This articles avowed aim is to assist legal writers, especially junior law professors with minimal training, in efficiently producing and publishing scholarship. To fulfill this objective, the article compiles timetested techniques used by the author and his colleagues. Sections discuss how to develop a feasible idea with substantial assistance from a mentor; how to translate the idea into formal prose and ensure ease of composition, readability, and marketability of the final product. B. Books on Academic Legal Writing 117. Eugene Volokh, Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and Getting on Law Review (4th ed. 2010). Professor Volokhs seminal book on academic legal writing is addressed to law students, but a broader readership may benefit from emulating Volokhs blueprint for masterful academic legal writing. This newly expanded edition covers nearly every imaginable topic in its purview, ranging from finding, testing, and corroborating a claim to researching, writing, editing, publishing, and publicizing a paper. Separate chapters discuss the conversion of practical
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work into an article, seminar term papers, cite checking, writing competitions, law review, and academic ethics. A fully annotated student article and shorter examples with explanations interspersed throughout the book illustrate the principles that Volokh prescribes. 118. Elizabeth Fajans & Mary R. Falk, Scholarly Writing for Law Students: Seminar Papers, Law Review Notes, and Law Review Competition Papers (3d ed. 2005). While the preceding text may appeal to academic legal writers who are not law students, this text is designed mainly for law students. Written from the perspective of two legal writing professors, the book introduces three types of student academic writing in law schoolseminar papers, law review notes, and law review competition papersand parses the academic legal writing process: choosing a subject, developing a thesis, researching, writing (outlining, drafting, and citing), revising and polishing, and publishing. Evaluating and editing others work as a law review member also are discussed. 119. Jessica L. Clark & Kristen E. Murray, Scholarly Writing: Ideas, Examples, and Execution (2010). Despite its title, this book does not discourse about scholarly writing in general; its intended audience is law students required to write research papers for their upper-division courses. The authors distill the academic legal writing process into five steps: (1) thinking about the topic and thesis, (2) preparing to write the paper, (3) executing by writing the draft, (4) refining by evaluating and revising the draft, and (5) finishing by polishing and publishing the paper. The text tracks three student papers from origination through publication as illustrations of the recommended writing process efficacy. XIV. MISCELLANEOUS TEXTS Sources listed in this final section discuss subjects not encompassed in the compendiums other sections; a venerable reference, books on artful and audience-centered legal writing, and a general editing checklist follow. 120. Blacks Law Dictionary (9th ed. 2009). A legal writing bibliography would be incomplete without a reference to this monumental legal dictionary, which has been touted as the worlds most widely cited law book since its first publication in 1891. The current edition defines more than 45,000 terms including law-related abbreviations and acronyms, offers alternate spelling or equivalent expressions for more than 5,300 terms, and contains nearly 3,000 quotations. Corresponding West Key Numbers are
45
45. Shorter versions of Blacks Law Dictionary are also available. See BLACKS LAW DICTIONARY (abr. 9th ed. 2010); BLACKS LAW DICTIONARY (3d pocket ed. 2006).
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[Vol. 50
provided for select entries, and some entries also specify the date when a term was first used in an English-language context, notably in a judicial opinion. 121. Mark Painter, The Legal Writer: 40 Rules for the Art of Legal Writing (4th ed. 2005). The author, an experienced jurist, academic, and columnist, is a proponent of the plain English movement in legal writing, and his forty rules collectively should help legal writers draft lucid documents. Each rule is treated in a couple of pages, rendering this book a useful source for busy readers who hope to gradually refine their prose by implementing a few suggestions at a time. The recommendations range from the macro-scale (for example, knowing your audience) to the micro-scale (for example, distinguishing between that and which). 122. Wayne Schiess, Writing for the Legal Audience (2003). This book recognizes that the audience for a legal writers work is not a monolithic entity, and that an effective legal writer must be able to modify a document to satisfy the expectations of the intended legal audience, which may be a prospective employer, supervisor, e-mail recipient, client, opposing counsel, mediator, trial or appellate judge, consumer, transactional lawyer, or citizen. Each short chapter discusses one of these dozen potential audiences and offers three primary recommendations to appeal to that audience. 123. Maureen B. Collins, An Editing Checklist, 88 ILL. BAR J. 415 (2000). This thirty-five-point checklist for revision applies to all types of legal writing and converts much of the advice offered by authors of the preceding works into a convenient format.

A Compendium of Legal Writing Sources

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