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3/29/2011 1:03:57 PM
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 Institute’s 2010 biennial conference, presenters celebrated the organization’s twenty-fifth anniversary and touted its remarkable growth, noting that while 108 professionals gathered for the Institute’s 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 writing’s 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 faculty’s incorporation
* Assistant Professor of Law, University of La Verne College of Law; B.A., Stanford University; M.A., University of California–Irvine; 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 author’s 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 employer’s letter to a law school excoriating a writing sample’s “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, 570–71 (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).
Electronic copy available at: http://ssrn.com/abstract=1836758
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Washburn Law Journal
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 readers—including academe, practitioners, and students—seeking 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 bibliography’s 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 baker’s 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, 59–212 (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 ASS’N, 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 School’s Section on Legal Writing, Reasoning, and Research’s 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/.
Electronic copy available at: http://ssrn.com/abstract=1836758
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A Compendium of Legal Writing Sources
That noted, I make no claim to the master list’s exhaustiveness; because legal writing scholarship has been burgeoning, I could not feasibly locate and categorize every legal writing source, and some of the bibliography’s deficiencies may stem from the master list’s 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 reader’s 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 reader’s 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).
law professors. and an appellate brief. teaching readers how to outline the rule of law that will provide the organizational structure for a memorandum. . 2010). 2007). EDWARDS. a memorandum of points and authorities. clarity.. 4. appellate briefs. negotiate. 11. An abridged version of this textbook tracks assignments in a typical first-year legal writing course. Analysis. Additionally. Legal Writing and Other Lawyering Skills (5th ed. case briefing. This book is a stand-alone introductory legal writing text and more. the authors explain how to convert an objective memorandum into a persuasive document. and revision for effective legal writing. 50 reader’s criteria for an optimal introductory legal writing text varies. Myra K. and Organiza11 tion (5th ed. Legal Writing: Process. and academic writing. Professor Edwards’ book treats legal writing as a process. memoranda. this book discusses basics about the law. such as the American legal system. Edwards. and readers are advised to leaf through a few volumes to find the primer tailored to their needs. Effective Lawyering: A Checklist Approach to Legal Writing and Oral Argument (2007). advise a client. case briefs. One of the standard references in the field. Charrow. interoffice memoranda. and draft pleadings and pre-trial motions. focusing on communication skills used in practice from the time an attorney meets a client through the argument of an appeal. letters. Charrow. The text is ideal for junior lawyers. and case synthesis. brief. as well as oral argument. Clear and Effective Legal Writing (4th ed. organization. and students desiring supplemental material on the fundamentals of effective lawyering. 1. See LINDA H. which are topics the text covers in depth. Veda R. legal analysis. It also describes the unique features of legal language and different categories of legal writing.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 398 Washburn Law Journal [Vol. Nancy L. Erhardt & Robert P. Jr. In addition to covering traditional topics. Annotated examples help readers learn how to draft an intraoffice memorandum. Suited for the beginning legal writer. The authors employ a minimalist approach. communicate electronically. Parrish & Dennis T. providing a checklist of general techniques to enhance readers’ legal writing before concisely describing specific techniques for trial and appellate briefs. 2010). underscoring the importance of context. and oral argument. 3. or oral argument. Schultz & Louis J. the authors describe how to compose a client opinion letter. 2007). Sirico. Austen L. Linda H. LEGAL WRITING AND ANALYSIS (2d ed. 2. Yokoyama. including the legal system and litigation process.
2006). motion memoranda. Calleros. Deborah A. Professor Calleros’ expertise in academic support for law students imbues this comprehensive text. and appellate briefs. 2008). 2007). rule. Legal Reasoning and Legal Writing: Struc12 ture. NEUMANN. and oral argument. Schmedemann & Christina L.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 2011] A Compendium of Legal Writing Sources 399 5. 7. Special chapters on summary judgment motions. Walter. Richard K. and appendices outline the writing process and provide pointers on style. Jr. and oral advocacy. cases. Synthesis: Legal Reading. this textbook. JR. Another classic work in the field. It also describes how to organize proof of a conclusion of law. 2009). & SHEILA J. A streamlined version of this textbook also is suitable for a basic legal writing course. 8. case briefs. Neumann. 6. and research strategies. writing style. Kuntz. Chapters also discuss other traditional subjects. See RICHARD K. demand letters. Strategy. appellate briefs. citation. Legal Method and Writing (5th ed. and statutes to rule application. Writing and Analysis in the Law (5th ed. this book proceeds through subjects ranging from an introduction to law. essay examination techniques. legal method and analysis. & Elizabeth Fajans. introducing law. and oral argument. Charles R. technically proficient office memoranda. The authors provide a step-by-step approach to the writing and research processes. Shapo. Reasoning. should satisfy readers seeking both breadth and depth. in addition to devoting separate chapters to special topics 12. and thesis paragraphs. demand letters. and conclusion). which covers topics including each component of the IRAC paradigm (issue. legal studies. LEGAL WRITING (2008). which I learned legal writing from and have continued to assign in my first-year legal writing course. and demand letters) render this book an invaluable resource for readers seeking assistance with legal writing beyond memoranda and appellate briefs. . application. SIMON. the analysis of case law and statutes. and discovery documents). brief writing. answers. and writing to parties (contracts. and Writing (3d ed. Other forms of legal communication covered include client advice letters. Innovative charts and diagrams complement the text and appeal to visual learners. and draft compelling. pre-trial advocacy (pleadings and motions). motions in limine. Marilyn R. outlines. and pleadings (complaints. analyze legal authorities. This textbook intertwines legal reasoning and legal writing. such as the legal system. and contract drafting.. advice letters. It introduces the legal system and legal writing. Analyzing one sample case. Chapters also discuss advice letters. exam answers. and legal writing. office memoranda. and Style (6th ed. Helene S. large-scale and small-scale organization. memorandum drafting (including the transactional context). citations.
the office memorandum is described in ten chapters. and appellate briefs and how to deliver an oral argument. Legal Reasoning. and Writing (5th ed. Like other standard introductory legal writing texts. with four addressing the discussion section and three addressing memorandum revision for content. diction. transitions. Objective Memoranda. 2009). Just Research. county and city ordinance issues. Chapters and appendices also address the finer points of legal writing style. and grammar. LAUREL CURRIE OATES & ANNE ENQUIST. interviewing and counseling clients. and citation accuracy. such as elementary legal analysis. and Just Writing —and is the only introductory legal writing book delving deeply into each of these subjects. LAUREL CURRIE OATES & ANNE ENQUIST. legal system and provides techniques for effective reading and analysis of statutes and cases. JUST MEMOS (2d ed. 2006). Spanning nearly 1. 10. the American legal system. but it divides a number of these topics into several chapters offering particularized guidance. and citator usage. For example. while the legal research section covers constitutional issues. paragraphs. and the brief chapters discuss motion briefs and appellate briefs. punctuation. Robin Wellford Slocum. common law issues. 2008). Research. 2010). grammar. syntax. 13 Just Briefs. this legal writing bible consolidates four of the authors’ texts—Just Memos. Separate chapters detail different types of law. The Legal Writing Handbook: Analysis. trial briefs. office memoranda. JUST WRITING: GRAMMAR. syntax. Briefs and Oral Argument. this book discusses how to compose memoranda. Opinion Letters. trial and appellate briefs. JUST BRIEFS (2d ed. and letter writing. 2009). state and federal statutory and regulatory issues.and fact-centered arguments and provide pointers for writing letters to clients or opposing counsel for demand or settlement. FOR THE . including effective paragraphs. 9. and oral argument. ANNE ENQUIST & LAUREL CURRIE OATES. 2007). Writing.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 400 Washburn Law Journal [Vol. Legal Research. and mechanics.S. Practice pointers interspersed throughout the text and short sections on professionalism emphasize legal practice. JUST RESEARCH (2d ed. Professor Slocum’s book discusses a panoply of usual introductory legal writing subjects. and Email and Text Messages. and Legal Writing for English-as-a-Second-Language Writers. organization. A Guide to Correct Writing. Seven books comprise the larger volume: Introduction. diction. 50 including types of legal arguments used in resolving questions of law. syntax. and Persuasive Argument (2d ed. The memoranda section describes strategies for writing memoranda on sophisticated subjects. 13. ANNE ENQUIST & CONSTANCE KRONTZ. The introduction overviews the U. LAUREL CURRIE OATES. Laurel Currie Oates & Anne Enquist. Tips on writing style address eloquence. A Guide to Effective Writing. PUNCTUATION. AND STYLE LEGAL WRITER (3d ed. rule and case evaluation.000 pages.
with caveats about the limitations of these techniques offered to guide the scrupulous legal writer. LOGIC FOR LAWYERS: A GUIDE TO CLEAR LEGAL THINKING (3d ed. whose target audience is first-year law students. legal scholars. Professor Schauer’s book intensely probes law and a range of legal reasoning techniques. statutory analysis. 1 (2007). . Patrick M. McFadden. ensuring its utility for advanced law students. David S. deductive analysis and rule-based reasoning. 2001).KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 2011] A Compendium of Legal Writing Sources III. Demystifying legal analysis for the beginning law student. Chapters explore the foundations of legal analysis and rules. Fundamentals of Legal Reasoning and Analysis 11. The texts introducing legal reasoning and analysis are arranged by perceived complexity. and remedies before briefly describing legal argumentation. REV. A Student’s Guide to Legal Analysis: Thinking Like a Lawyer (2001). Logic for Law Students: How to Think Like a Lawyer. Stephen Clowney & Jeremy D. Written primarily for first-year law students. Romantz & Kathleen Elliot Vinson. L. Unlike the preceding texts in this section. chapters examine each of these questions involving the existence of a right or obligation. 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. RUGGERO J. 69 U. application. explanation. ALDISERT. and procedures that the sources listed below illuminate in varying levels of depth. while the following sections about legal reading and case briefing and legal procedure flow logically between sources. Deductive reasoning. Judge Richard 14. and conclusion). and reasoning by analogy receive attention. This article encapsulates Judge Aldisert’s Logic for Lawyers: A Guide to 14 Clear Legal Thinking. Frederick Schauer. and practitioners. compact book on legal reasoning explains jargon that may confound novice legal writers. and cover inductive analysis and analogical reasoning. inductive generalization. liability. Ruggero J. 13. rule. Thinking Like a Lawyer: A New Introduction to Legal Reasoning (2009). PITT. this dense. 2009). A. Legal Analysis: The Fundamental Skill (2d ed. 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. 12. and other considerations. and policybased reasoning. INTRODUCTION TO THE STUDY OF LAW 401 The legal field has its own reasoning and analytical methods. discourse. The text ends by deconstructing the CREAC paradigm (conclusion. 14. Peterson. an IRAC variant. Aldisert.
and the legislature in conflict resolution. 50 Posner and several acclaimed law professors laud the book’s original perspective in covering traditional topics for this genre. B. Professor Huhn delineates five categories of legal arguments—text.nea. Wilson Huhn. intent. statutory interpretation. affirms that its insights can help advanced legal writers craft more cogent legal arguments. and policy—and explains tactics for identifying. 2008).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. how it is structured. They Will Not Take a Second Look!”: Critical Reading in the Legal Writing Classroom.com/abstract =1160925. and dissects a single legal dispute to familiarize readers with the manifold procedural decisions at each stage of litigation. and how it should be evaluated. Without close reading skills. law professors often bemoan students’ inability to read crit15 ically. Orin S. and the book’s theoretical construct is logically tested after Huhn establishes its premises. Legal Reading and Case Briefing 17. Reading Like a Lawyer: Time-Saving Strategies for Reading Law Like an Expert (2005). including the progression of a criminal case.. tradition. 16. authorities. evaluating. 293. Kerr. Its systematic exploration of the strengths and weaknesses of each argument type. creating. what terminology it employs. 18. the distinction between rules and standards. economic. This comprehensive casebook describes the legal system. legal writers lack the foundation for 15. Michael A. REV. precedent. Professor Berch’s book covers civil and criminal law topics. ASS’N. based on the different structure and evidentiary support underpinning each. TO READ OR NOT TO READ: A QUESTION OF NATIONAL CONSEQUENCE 5–6 (2007). . civic. “In a Case. and cultural decay that threatens American democracy). Karp. and critiquing each one through examples from judicial opinions. Ruth Ann McKinney. legal facts. Berch et al.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 402 Washburn Law Journal [Vol. 11 GREEN BAG 2d 51 (2007). legal realism. NAT’L EDUC. Debra Moss Curtis & Judith R. in a Book. 15.gov/research/toread. 2010). This accessible essay helps beginning law students understand what a judicial opinion is. judicial opinions. Citing statistics that corroborate their experiences. the common law. and the role of attorneys. Introduction to Legal Method and Process: Cases and Materials (5th ed. including rules. available at http://ssrn. and burden of proof concerns. The Five Types of Legal Argument (2d ed. http://www. 41 WILLAMETTE L. especially while preparing for class. 294 (2005) (citing anecdotal evidence of passive reading). precedent. case synthesis. courts. With a more expansive scope than the other texts listed in this section. How to Read a Legal Opinion: A Guide for New Law Students. Huhn’s artful interweaving of theory and practice has led several leading law schools to assign this text. Intra-type attacks and cross-type arguments are discussed at length. analogical reasoning. statutory interpretation.
22. R. this book presents a six-step process for briefing judicial opinions. Providing Procedural Context: A Brief Outline of the Civil Trial Process. including positivist. and other prisms through which judges evaluate cases. After introducing law school. APP. torts. pragmatic. Case briefs of varying quality and complexity illustrate how the guidelines operate in practice and define terms encountered in first-year doctrinal courses (contracts. Judith Giers. where legal writers may read hundreds of thousands of pages during their professional lifetime. 35 U. if necessary. 2006). The text’s final chapter offers a primer on jurisprudential perspectives. Christopher Lawson.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 2011] A Compendium of Legal Writing Sources 403 drafting cohesive. 43 (2005). C. and constitutional law).S. BALT. This article highlights three vital procedural issues for every appeal: (1) who has standing to appeal. 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. and this book concentrates exclusively on mastering legal reading in the law school and legal practice contexts. describing how a civil lawsuit advances from the pre-filing stage to the appellate stage. PRAC. 19. and legal reasoning. Its framework for analyzing the different standards for a host of pre-trial. and (3) how much deference the appellate court accords to the lower court’s decision in light of the applicable scope and standard of review. (2) when appellate jurisdiction exists (with a fruit salad analogy being used to explain the final order doctrine). 4 J.nea. Learning Legal Reasoning: Briefing. This practice note’s explanation of how standards of review should shape civil trial strategy focuses on the applicable review standards in the U. Amy E. Federal criminal law and civil law problems test readers’ understanding of appellate procedural intricacies elucidated in the article. complete with guidelines for each step. available at http://www. and post-trial rulings is instructive for any legal writer interested in the degree of deference afforded various trial court decisions on appeal. Appellate Fruit Salad and Other Concepts: A Short Course on Appellate Process. law. . & PROCESS 561 (2002). READING AT RISK: A SURVEY OF LITERARY READING IN AMERICA—EXECUTIVE SUMMARY 6 (2004). natural law. trial. Court of Appeals for the Eighth Circuit.pdf (demonstrating an accelerating decline in young adult literary readers in the past twenty years). civil procedure. 21. John Delaney. ASS’N. 151 (2004). Legal Procedure 20. the U. L. Seeing the Appellate Horizon: Civil Trial Strategy and Standards of Review in the Eighth Circuit. Analysis and Theory (3d ed. legal system. NAT’L EDUC.S.gov/pub/ RaRExec. policyoriented. forceful legal arguments. 12 PERSP. REV. Sloan.
factor outcomes. legal writers should draft cohesive. 82 N. . See Legal Writing Inst. Case Synthesis 23. A.cfm?abstract_id=1650923. however. and readers intrigued by this debate may wish to peruse that issue. Jane Kent Gionfriddo. while the following set of articles describes small-scale organizational tips with reference to the CREAC paradigm and other IRAC var16 iants. J. 40 TEX.pdf. considering explicit rules before gleaning implicit rules from opinions and harmonizing hypothetical synthesized rules with the outcomes of precedential cases. Smith. Most critically. factors. 24. For a brief exposition of the numerous small-scale organizational paradigms taught by legal writing professors today. BAR ASS’N. Thinking Like a Lawyer: The Heuristics of Case Synthesis. 9 PERSP. a longstanding matter of contention among legal writing professors. see Gerald Lebovits. The first set of articles below discusses case synthesis techniques. 11 PERSP. 110 (2001). available at http://www. Written for attorneys and law professors.ssrn. but the article’s sample rule synthesis funnel chart (a flowchart) may assist other legal writers searching for a nifty 16. 64 (2010).KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 404 Washburn Law Journal IV. REV.com/sol3/papers. The author concentrates on high-tech pedagogical techniques for legal writing professors teaching visual learners case synthesis.Y. 123 (2003). A Revised Concept Chart: Helping Students Move Away from a Case-by-Case Analysis. CASE SYNTHESIS AND SMALL-SCALE ORGANIZATION [Vol. and case names horizontally. with an explanation of rules preceding application of those rules for each legal issue. this article discusses the theory and practice of case synthesis for objective and persuasive legal documents. available at http://papers. 50 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. Cracking the Code to Writing Legal Arguments: From IRAC to CRARC to Combinations in Between. 25. Teaching Synthesis in High-Tech Classrooms: Using Sophisticated Visual Tools Alongside Socratic Dialogue To Help Guide Students Through the Labyrinth.org/publications/seconddraft/nov95. To help their students synthesize cases. this case listing approach promotes case-by-case. 1 (2007). other legal writers also may find utility in the texts’ explanations of important pre-writing steps for trenchant legal writing. I elide arguments on whether one IRAC variant is inherently superior to the others. ST. and instead here list the sources I use to teach smallscale organization. to balloon to twice its typical length in November 1995.. 10 SECOND DRAFT 1 (1995).lwionline. analysis. Craig T. TECH L. compelling analyses. The debate over IRAC’s efficacy caused The Second Draft. as opposed to rule-based. while the revised concept chart presented in this article facilitates case synthesis by arranging factors vertically and factor-related facts. the Legal Writing Institute’s bulletin. Deborah Shore. Bulletin of the Legal Writing Institute. and outcomes of the cases horizontally. legal writing professors often use concept charts arraying cases vertically and facts. An extensive example illustrates how the suggested methodology for case synthesis operates.
Small-Scale Organization 26. 72 KY. 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. should help other legal writers reason by analogy more effectively. Mark E. Crafting Analogies and Distinctions that Work. L. 39 CUMB. reasoning by analogy. conclusion). Add an E to Your IRAC. 26 (2006). 17. Scott Fruehwald. Choosing and Using Legal Authority: The Top 10 Tips. DAVID S. Referring to the small-scale organizational scheme he teaches— conclusion. based on Romantz and Vinson’s Legal Analysis: The Fundamental 17 Skill.ssrn. rule illustration(s). 1 (1997). 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. 35 STUDENT LAW. rule. rule application. distinguishing precedent. and definition. 685 (2008).com/abstract=1196462. Promoting In-Depth Analysis: A Three-Part Approach to Teaching Analogical Reasoning to Novice Legal Writers. available at http://ssrn. Professor Fruehwald divides legal arguments as follows: rule-based reasoning. Wojcik. Susan Hanley Duncan. rule explanation. Using four categories.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 2011] A Compendium of Legal Writing Sources 405 alternative to the traditional case concept chart. REV. explanatory options include public policy. Legal Studies Research Paper No. Seymour. 6 PERSP. explanation. Hofstra Univ. 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. LEGAL ANALYSIS: THE FUNDAMENTAL SKILL . and policy-based reasoning. B.com/abstract=1260829. available at http:// ssrn. 2008).cfm?abstract_id=979656. Terry Jean Seligmann & Thomas H. rule. 29. available at http://papers. BAR ASS’N BENCH & BAR (Nov.com/sol3/papers. 28. its four-step construct for analogical analysis. While this article is intended for legal writing professors. application. 07-11 (2007). Stephanie Roberts Hartung & Shailini Jandial George. focusing on mistakes that result in tenuous analogies and distinctions. exemplification. the authors provide ten tips ranging from identifying relevant legal sources to discerning when to cite minimal authority for a legal proposition. 30. 27. ROMANTZ & KATHLEEN ELLIOT VINSON. 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. Legal Argument and Small-Scale Organization.
The following three articles distill the books by summarizing the memorandum writing process while the last two articles focus solely on revision. 18.com/abstract=1180654.uchicago.pdf (last visited March 16.law. present principles of effective writing. John Bronsteen. practical guide has been adopted by many legal writing instructors at top-tier law 18 schools. Books on Legal Memoranda 32. Writing a Legal Memo (2006). http://www. a standard early assignment for them in the academic and practice contexts. available at http://ssrn. .KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 406 Washburn Law Journal [Vol. The first two-thirds of (2d ed. 31. and provide guidance on legal research and citation. Joan Malmud & Sandy Patrick. A. NOTES 93 (1999). such as the University of Chicago. the article catalogues techniques for confronting these authorities with examples from diverse areas of law. Sharing the pragmatic orientation of the preceding text.edu/files/file/Atumn% 202010_0. 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. 2011). L. Kathryn A. OBJECTIVE LEGAL MEMORANDA Law students and newly minted lawyers often share anxiety about composing legal memoranda. 1999 ARK. This succinct. 2009). Adverse Authority: Rationales and Methods for Using It to Strengthen Legal Argument. should help allay their concerns and edify more seasoned legal writers. drawn from the author’s experience teaching legal writing. V. After stressing the ethical obligation to cite potentially harmful authorities in certain instances. The Legal Memo: A Basic Guide (2008). emphasizes when and how adverse authority should be disclosed in court documents. Chapters review the American legal system. this book places readers in the position of a first-year attorney tasked with writing a memorandum. The books listed below. but its prescriptions are equally valid for legal writers drafting objective documents. A Lawyer Writes: A Practical Guide to Legal Analysis (2008). Sampson. Wayne Schiess. an oft-fatally neglected step in composition. 33. 50 Excerpts from a sample memorandum identify and critique common analytical pitfalls in each step of the construct. 34. explain how to compose a legal memorandum. This note. Christine Coughlin. which discuss memorandum drafting in detail. Another slim volume on memorandum composition. The University of Chicago Book List (2010).
Articles on Legal Memoranda 35. the essay assumes the perspective of a budding associate assigned a memorandum. 15 PERSP. and polishing—focusing on the latter two in this terse article. sources consulted or research checklist. writing. and organization of legal rules. (2) the organization and assessment of complex fact patterns. Based on the author’s experiences with neophyte lawyers struggling to reason through complicated legal problems. and conclusion). A multiple pass-through technique ensures that writers correct macro-scale. and policy. assumptions. Brooke J. drafting. and appendices. 8 PERSP. Mark Gannage. “simple” balancing tests. Smith. 38. 15 PERSP. 37. brief answer. and law professors. REV. and presents sample memoranda varying in their efficacy. issue(s). research. (3) the statement and organization of legal issues. Stein. 54 (2006). law students. Practical Jurisprudence: Deconstructing and Synthesizing the Art and Science of Thinking Like a Lawyer. background. The final third of the book discusses the sections in a typical memorandum (question presented. Considerations in evaluating the hypothetical fact pattern provided by the partner follow: (1) the context of legal analysis. L. Bowman. statement of facts. facts. the author’s methodical approach to composing a legal memorandum can assist any legal writer grappling with organizational and time-management problems. Helping Students Understand that Effective Organization Is a Prerequisite to Effective Legal Writing.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 2011] A Compendium of Legal Writing Sources 407 the book cover elementary topics such as sources and systems of law. discussion or analysis. offers hints for revision and professional e-mail correspondence. Amy R. table of contents. and post-writing usefully parse what can be a daunting process. legislation. bulleting suggestions for each section: caption. interpretation. The five suggested steps of scheduling. general principles. and (7) the promulgation of arguments in the alternative to reach a conclusion. This article by a practitioner provides a recommended organizational framework for a memorandum. 29 U. 36 (2006). 1 (1998). Learning the Art of Rewriting and Editing—A Perspective. 30 (1999). 36. Structure Your Legal Memorandum. This essay on practical jurisprudence is intended for four audiences: new attorneys. (4) the location. The author divides the writing process into four stages—pre-writing. MEM. conclusion(s). (5) the many forms of doctrine: rules. B. pre-writing. discussion. statement. legal reading. and small-scale organization. academic support program directors. This article’s title belies its broader utility. content-related problems in their writing . Kevin H. (6) the statement and placement of authority. standards. revising.
mechanical problems (syntax.pdf (covering works that analyze how or why something persuades. See. e. Other professors have published annotated 20 bibliographies on rhetorical theory’s relation to legal writing and persua21 sion’s theoretical role in legal writing. Michael R. Recognizing the subject’s immensity. 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. Anderson. ASS’N LEGAL WRITING DIRS. citations.alwd. Terry Jean Seligmann. is usually taught in the second or third semester of a legal writing course sequence. See. 729 (2004). 11 J.” For a “tear free” memorandum. 6 J. the article suggests five layers of review that track the legal reader’s priorities: macro issues (the thesis paragraph and flow of the discussion section). legal logic. e.g. experienced legal writers have memorialized their insights on persuasive writing and appellate advocacy for decades. citations. APP. Readers interested in those subjects are encouraged to consult the cited bibliographies.org/JALWD/CurrentIssues/2009/pdfs/stanchi. grammar. other legal writers may benefit from the author’s guidelines for revising a memorandum or “peeling the onion. resulting in a vast literature devoted to 19 argumentative legal writing.pdf (discussing classic and contemporary rhetoric). and typographical mistakes). as opposed to what is persuasive. and encompassing classic and contemporary rhetoric and theories of narrative and argumentation). more minute concerns (paragraphs and sentences). 19. 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. PRAC. available at http://www.alwd. 129 (2006).. The volumes are arranged by perceived complexity. 50 (substance and organization) before remedying micro-scale. Smith. PERSUASIVE LEGAL WRITING AND APPELLATE ADVOCACY Persuasive legal writing.. 75 (2009). REV. neatness (grammar. assuming background knowledge on the basics of writing as an advocate. with the final books listed providing persuasive pointers and models. Because my bibliography centers on legal writing. at the trial or appellate level. Kathryn Stanchi.g. Persuasion: An Annotated Bibliography. 2 (2010). & PROCESS 1. . 3 J.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 408 Washburn Law Journal [Vol. and it is an imperative skill for practitioners. Rhetoric Theory and Legal Writing: An Annotated Bibliography. and a final reassessment (“the onion skin”). VI. 20. ASS’N LEGAL WRITING DIRS. 56 MERCER L. Why is a Legal Memorandum like an Onion?—A Student’s Guide to Reviewing and Editing. Changing Fashions in Advocacy: 100 Years of Brief-Writing Advice. diction. Although law students are this article’s avowed audience. I thus could have quintupled the following source list but instead selected a manageable number of noteworthy books and articles for the reader’s study. available at http://www. and typographical errors). 21.org/JALWD/Archives/2006/pdf%20 files/Smith. See Helen A. 39.
effective use of authority. composition of the opening. Persuasive Written and Oral Advocacy in Trial and Appellate Courts (2d ed. and is designed for the first. polishing. and petitions for rehearing. Professor Beazley familiarizes readers with appellate jurisdiction and standards of review before presenting a step-by-step approach to drafting an appellate brief. Students in an appellate advocacy or persuasive legal writing course and practitioners inexperienced in appellate advocacy should garner wisdom from this book. Michael R. statement of the case. body of the argument. Effective Appellate Advocacy: Brief Writing and Oral Argument (4th ed. a primer on persuasion.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 2011] A Compendium of Legal Writing Sources 409 A. Miller. 43. and reply briefs. . 42. 2010). offer strategies to excel in oral argument. 2009). summary of the argument. formatting. John T. headings. Books on Elementary Persuasive Legal Writing or Appellate Advocacy 40. 1994). preliminary considerations before argument. and moot court competitions. appellee. oral argument. argument.and small-scale organization. and sample briefs. post-argument memoranda. I taught persuasive legal writing and oral argument for four years using this text. Chapters discuss pre-writing. preparation for and presentation of an oral argument. technicalities of the appeal. with the remainder of the book discussing oral argument and reproducing sample briefs. A Practical Guide to Appellate Advocacy (3d ed. persuasive techniques. briefs. and summary of the argument. 41. including research. and conclusion—in a brisk eighty pages. and my students appreciated its brevity and directness. readability. preparation for brief writing. Its four parts introduce persuasive legal writing. this text covers motions practice in trial and appellate courts.or second-year law student assigned an appellate moot court problem. large. Mary Beth Beazley. 2007). self-grading. Carole C. as well as appellate briefing and oral argument. and provide tips for handling appeals and writs. The Moot Court Book: A Student Guide to Appellate Advocacy (3d ed. Chapters introduce the moot court experience and each substantive component of an appellate brief—the statement of the case. Using a hypothetical case file. including questions presented. Fontham. which includes traditional subjects for this genre: the decision to appeal. point headings. Berry. including citation form. complete with four annotated briefs implementing the text’s recommendations. Gaubatz & Taylor Mattis. Michael Vitiello & David W. issues. describe how to prepare memoranda for trial courts. substantive brief components. The book assumes student knowledge of legal research and writing fundamentals.
the record on appeal and the joint appendix. keys to drafting an exceptional brief and avoiding traps that ensnare unwary appellate advocates. an introduction to law and the appellate process. Written for practitioners. mediation. A thorough analysis of actual civil and criminal appellate briefs follows. and demand letters. 2008). standard of review. Law students transitioning to practice are the book’s envisioned audience. electronic and initial filing. In this manual. and postdecision filings. this recently published volume guides lawyers through the thicket of appellate process with advice from experts in private practice. . jurisdiction. providing academic. respondent and reply briefs. appendices. oral argument. and secrets of a winning oral argument. The book lucidly articulates the judicial mindset on appeal and discusses how awareness of an appellate judge’s frame of mind should shape an appellate attorney’s brief and oral presentation. 50 B. oral argument. briefs. 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. Topics include: the appellate court’s role in the federal judiciary. appellate brief writing. the appellate brief including introduction. claim. originally published in 1951. 2005). Re & Joseph R. and the text’s topics span from the lawyer’s professional responsibility to legal writing and preliminary considerations.. professionalism and ethics in appellate advocacy. 46. inter-jurisdictional certification. The How-to-Win Appeal Manual: Winning Appellate Advocacy in a Nutshell (2d ed. opinion. Brief Writing and Oral Argument (9th ed. post-argument. judicial. 45. 2010). and post-briefing.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 410 Washburn Law Journal [Vol. substantive statements. The current edition is co-authored by the late distinguished jurist and professor Edward Re (1920–2006) and his son Joseph Re. endorsed an earlier edition of this classic text. American Bar Association Section of Litigation. statement of the issues. Subjects raised include the appellate process. Ralph Adam Fine. memoranda of law. a successful litigator. preservation of issues for appeal. Books on Advanced Persuasive Legal Writing or Appellate Advocacy 44. trial and post-trial briefs. along with exercises to practice the principles exhorted in the text. and summary of the argument. and publication of decisions—it should assist all practitioners seeking a comprehensive. settlement of cases on appeal. oral argument. Judge Fine explains how an advocate can prevail on appeal. and legal citation. government. Re. Although the text focuses on federal appeals—examining circuit variations in local rules governing motions. A Practitioner’s Guide to Appellate Advocacy (Anne Marie Lofaso ed. Justice Burger. and academia. and practical perspectives on the craft of brief writing and oral argument. accessible book about appellate advocacy. who served as the chief justice from 1969 to 1986. Edward D.
Briefing and Arguing Federal Appeals (3d prtg. Writing to Win: The Legal Writer (1999). such as rehearings and potential new counsel.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 2011] A Compendium of Legal Writing Sources 411 47. technical requirements for briefs. Aldisert. (4) strategies after losing on appeal. Court of Appeals for the Third Circuit and a prolific authority on legal writing. As a former legal writing instructor at Harvard Law School. including fundamentals. it endures as critical reading for appellate advocates. and finer points. Each chapter begins with a set of rules. Law schools have adopted his book for appellate advocacy courses. answers. discovery documents. Frederick Bernays Wiener. a forty-year veteran of the U. including essentials about each section. contracts. Winning on Appeal: Better Briefs and Oral Argument (2d ed. extolled an earlier edition. Judge Aldisert. two petitions for rehearing. 2009). Examples from attorneys and professionals in other fields illustrate the eloquence Stark advocates and the ineffective writing he decries. Stark. and the nuts and bolts of brief writing and preparing and delivering an oral argument. 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. (2) the briefing of an appeal. and rules. Steven D. In this revised edition. writing and research tips. . (3) the oral argument of an appeal. and finer points. Stark has recorded his collected insights from a dozen years of teaching and reading legal writing in this book. 48. Fourteen chapters containing a total of 180 sections allow readers to easily locate answers to particular questions on the discussed topics. and an annotated oral argument. 2003). complaints.S. may be written in a more antiquated style than the modern texts listed in this section. memoranda. and the Ninth Circuit’s Chief Judge Alex Kozinski has echoed the praise more recently. the final chapter’s checklists for briefs and oral arguments also have proven popular. first published in 1961. Judge Aldisert offers dozens of judicial perspectives on the hallmarks of compelling appellate advocacy. This reprint of Wiener’s pioneering book on federal appellate advocacy. who served from 1956 to 1990. has won numerous plaudits for this book—Justice Brennan. e-mails. but as a landmark work in the field. 49. some of which are pertinent to advocates in state courts or federal trial courts: (1) factors conditioning an appeal. suggestions. Ruggero J. instead describing how attorneys can draft briefs and deliver oral arguments that will enable them to win on appeal in federal courts. The book is not a practice manual or text on federal appellate procedure. letters. and (5) illustrative examples of a statement of facts. and practitioners have consulted it to better apprehend the context of appellate review.
conduct thorough legal research (know the applicable standard of review. The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (2d ed. Raymond P. compose the first draft. this book succinctly introduces appellate advocacy techniques and proceeds to the annotated exemplary briefs. and this book compiles highlights from his four years of persuasive legal writing columns for the New Jersey Law Journal. 50 50. be efficient. beginning each tip with supporting quotations from judges. planning the brief—or a minor one—for example. make a chronology. learn the record (procure. refine the first draft. but also edifying for practitioners. Garner then scrutinizes the tip under discussion and provides before-and-after examples from actual briefs on the tip’s subject. Nine chapters subdivided into easily digestible three-page sections discuss the composition process. and submit the brief on time. I assigned excerpts from it while teaching an undergraduate legal writing course and a first-year legal writing course. study. Making Your Point: A Practical Guide to Persuasive Legal Writing (2007). . A diverse audience can learn from this gem of a book. or acclaimed authors. Garner’s text catalogues 100 techniques to improve brief quality. Ciampi & William H. C. 52. Oettle describes persuasive techniques apt for a multitude of legal documents.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 412 Washburn Law Journal [Vol. which involve criminal law.typepad. and numerous practitioners have applauded its cogency and accessibility. Manz. conventions. Each brief is accompanied by a court opinion that demonstrates how a compelling brief can leave a lasting imprint on the development of law. narrow the issues. and outline research). Kenneth F. outline the brief. Written for an associate who is delegated brief-writing responsibilities. and statutory interpretation. http://raymondpward. academics. emphasis. logic. Oettle. 2004). perspective.com/newlegalwriter/files/HowToWriteAnAppel lateBrief. The Question Presented: Model Appellate Briefs (2000). and institutional concerns. not concentrating solely on briefs. analyze each issue. avoiding repetition. constitutional law. 51. become familiar with the case. which could be a major topic—for example. Ward. this article by an appellate attorney explains how the associate should approach the assignment: learn the rules. Designed as a supplemental text for persuasive legal writing classes. Bryan A.pdf. Maria L. and summarize it). Garner. How to Write an Appellate Brief (2006). outline the facts. Oettle is a partner who chairs his law firm’s writing program. strategy. Articles on General Persuasive Legal Writing or Appellate Advocacy Techniques 53. primacy.
Judge Hamilton focuses on seven crucial components of a federal appellate brief and unpacks the related prescriptions in Rule 28. Persuasion Is an Art . the statement of the issues presented for review. knowing the rules. Like the preceding text. 11 PERSP. Stephanie A. But It Is Also an Invaluable Tool in Advocacy. Special considerations for the appellant’s brief. 55. . this essay is composed by a federal circuit judge. Jr.. REV. 50 S. establishes the foundations of legal advocacy before elaborating on considerations specific to written and oral advocacy. Vaughan. Essentials of an Effective Appellate Brief. 143 (1948). Wiener. 635 (2009). Frederick Bernays Wiener. and it analyzes each major substantive section of a federal appellate brief before offering remarks on presenting a convincing oral argument. For readers disinclined to pore 22 over Wiener’s tome on effective brief-writing. These components are the jurisdictional statement.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 2011] A Compendium of Legal Writing Sources 413 54. Former Justice Regnier of the Montana Supreme Court condensed his views on successful appellate briefing into this three-page article. REV. L. offering. 57. Effective Appellate Brief Writing. L. 70 TUL. . written by a legal skills professor and moot court coach. Jim Regnier. 187 (1995). the summary of the argument. Wiener’s precepts for 22. intended primarily for legal writing students and instructors but serving as a useful checklist for practitioners. the statement of the case. developing a strategy on appeal. Hamilton. 61 BAYLOR L. and the reply brief follow this discussion. the respondent’s brief. 58. “concrete and detailed” recommendations grounded in his experiences as a military lawyer and an assistant to the solicitor general. Appellate Briefing: A Judicial Perspective. Court of Appeals for the Fourth Circuit dissects a portion of Federal Rule of Appellate Procedure 28. 581 (1998). Jacques L. guiding the reader through the complete process of drafting and orally presenting a persuasive argument for a client. See generally FREDERICK BERNAYS WIENER. 72 (2003).C. Clyde H. BRIEFING AND ARGUING FEDERAL APPEALS (1961). Some of the judge’s ruminations may interest only practitioners with cases in the Fifth Circuit. the statement of facts. Included in the South Carolina Law Review’s symposium on the art of advocacy. Ruminations from the Bench: Brief Writing and Oral Argument in the Fifth Circuit. REV. . REV. and writing persuasively. WASH. and a short conclusion. Recommendations include knowing the audience. 56. 17 GEO. this classic article provides the pith of the advice from that longer work. but most of the essay provides sound advice for all appellate advocates. This practical article. the argument.S. in the author’s words. L. this article by a judge on the U. which establishes requirements for appellant and appellee briefs.
Jonathan K. Istvan. and point of view play in the reader’s evaluation of a factual story. 1113 (2007). organization. This path-breaking. Twenty-Five Propositions on Writing and Persuasion. TOL. Brian J. 63. frequently cited article invigorated the applied legal storytelling movement. emphasizing three ethical considerations for advocates—candor. honesty. 49 S. 50 effective appellate brief-writing. Fiction 101: A Primer for Lawyers on How To Use Fiction Writing Techniques to Write Persuasive Facts Sections. 62. referring to cases in which courts sanctioned attorneys. substantive. available at http://www. 255 (2009). and credibility—and how a legal writer may violate these ethical rules.J. 38 U. LEGAL WRITING INST. 46 WILLAMETTE L. This straightforward article fulfills its promise.edu/law_library/jlwi/archives/1998/ bla. Happily Ever After. D. Articles on Specific Persuasive Legal Writing or Appellate Advocacy Techniques 61. Van Patten. and stylistic recommendations for more compelling legal writing. Jennifer Sheppard.law2. Recognizing that rule-based reasoning . REV. Beverly J. L. The authors discuss how a lawyer can narrate a compelling story in a facts section. Blair. Appendices with worksheets enable legal writers to apply the techniques presented to their own cases. Ethical Considerations in Advocacy: What FirstYear Legal Writing Students Need to Know. Sarah E. Far Away: Using Narrative To Fill the Cognitive Gap Left by Overreliance on Pure Logic in Appellate Briefs and Motion Memoranda.byu. illustrated with ample examples. 250 (2004). 459 (2001). range from complying with court rules to conveying conviction that allays the reader’s doubts and satisfies the reader’s curiosity. Foley & Ruth Anne Robbins. Topics discussed span from organization to ethical considerations. REV. offering a bevy of organizational. 32 RUTGERS L.pdf. resolution.D. 109 (1998). Recognizing that practitioners with imminent deadlines may take shortcuts that undermine the persuasiveness of their briefs. Effective Brief Writing Despite High Volume Practice: Ten Misconceptions that Result in Bad Briefs. which applies storytelling elements to the practice and pedagogy of law. Ricks & Jane L. This article seeks to facilitate the transition from objective to persuasive writing for first-year legal writing students. by remaining conscious of the roles that character development. conflict. the authors highlight ten misconceptions about brief writing and list remedies that will enhance a busy judge’s comprehension of a brief.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 414 Washburn Law Journal [Vol. often the most important part of a brief. 60. 4 J. and in a Galaxy Far. REV. L. Once upon a Time. 59.
Stolley. Court of Appeals for the Eighth Circuit to change their initial impressions of a case). Apr. 372 U. Following his own advice. The Importance of Appellate Oral Argument. Once upon a Time. 25. 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. 23. the article catalogues effective storytelling techniques—character. VII. 141 (2003) (indicating that oral argument has sometimes led judges on the U. 33 STETSON L. non-legal authority. values. Ellie Margolis. ORAL ARGUMENT Oral argument is not technically a form of legal writing. 64. who heads the appellate practice group at his firm. intended for legal writing instructors and students. 24. and style—and maps these onto the typical sections of an appellate brief or motion memorandum. voice.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 2011] A Compendium of Legal Writing Sources 415 dominates legal instruction and practice but is only one component of a suc23 cessful appeal based on Aristotle’s classic rhetorical model.S. Wainwright. Far Away: Using Narrative to Fill the Cognitive Gap Left by Overreliance on Pure Logic in Appellate Briefs and Motion Memoranda. Joseph W. the author explicates four types of policy arguments—judicial administration. 20 Tips for Writing Shorter Briefs. After establishing the theoretical basis for this contention. 73 (2001). the author. and beliefs). and logos (the message’s logical power). and in a Galaxy Far. BAR ASS’N HEADNOTES. Telfer III. 255. in Perspectives: Teaching Legal Research and Writing. REV. This article expands on Margolis’ contemporaneously published article. I have included references to instructive works on oral advocacy below. pathos (an appeal to the audience’s emotions. point of view. . REV. and economic—and describes how to bolster the arguments’ efficacy by anchoring them in legal or.S. 62 MONT. Therefore. 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. normative. Teaching Students to Make Effective Policy Arguments in Appellate Briefs. conflict. 335 (1963). lists and explains twenty substantive and stylistic suggestions in less than one page. institutional competence. especially appellate advocates. Closing the Floodgates: Making Persuasive Policy 25 Arguments in Appellate Briefs. 2009. DALL. at 11. an effective appeal encompassed three concepts: “ethos (the speaker’s credibility). the U. REV. Supreme Court case that established an indigent state criminal defendant’s right to counsel. 139. Hatchett & Robert J. L. 26. Sheppard proposes that legal writers employ narrative strategies to persuade judges (hypothetical or real) in appellate briefs and motion memoranda. 46 WILLAMETTE L.” Jennifer Sheppard.S. Ellie Margolis. plot. 59 (2001). Happily Ever After. It is followed by an extensive evaluation of 24 Abe Fortas’ argument from Gideon v. 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. theme. 255-56 (2009). Scott P. setting. 9 PERSP. For Aristotle. if necessary. 65.
the lawyer’s twin obligations to the client and the court. it details the purposes of oral argument. and although law students are its likely audience. especially suitable for law students. 70. the preparation of oral argument.S.S. rebuttal. and how to categorize and respond to questions from the bench. FREDERICK. 22 AM. THE ART OF ORAL ADVOCACY (2003). Although expressly describing the nuances of oral advocacy before the U. A separate section explains the respondent’s argument. Oral Argument in the Supreme Court of the United States. U. Subjects covered include nervousness. An abridged version of this book.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 416 Washburn Law Journal A. Stephen M. The Little Book on Oral Argument (1991). how to prepare for it and deliver it. and amicus curiae arguments. Alan L. James D. and rebuttal. Dimitri. See DAVID C. This petite volume is one of the few books focused exclusively on oral argument. Written by a former deputy solicitor general and founding partner of the topranked U. Supreme Court Justice Ginsburg drafted the foreword to this book. preparation. questions.S. . 571 (1998). 50 66. with each topic subdivided into a list of tips that apply to appellate arguments and. J. Supreme Court and Appellate Advocacy: Mas27 tering Oral Argument (2d ed. Brown & Platt. 38 STETSON L. style. and the delivery of oral argument— from a pragmatic perspective. delivery. U. Drafted by a former appellate litigator for the U. this article contains advice appellate attorneys would generally benefit from heeding. practitioners unfamiliar with oral argumentation may find it useful. to a significant extent. The Preparation and Delivery of Oral Argument in Appellate Courts. is also available. Stepping Up to the Podium with Confidence: A Primer for Law Students on Preparing and Delivering an Appellate Oral Argument. 68. Supreme Court. 529 (1983). TRIAL ADVOC. Frederick. as well as common mistakes. structure. Department of Justice. 75 (2008). including its general format. This excellent primer almost renders superfluous a typical first-year legal writing course lecture on oral argument. Gabriel. 69. and delivery with a helpful five-part approach to answering questions from the bench. 67. 2010). REV. REV. Henry D. Shapiro. L. 33 CATH. Supreme Court and Appellate Litigation practice group at Mayer. preparatory steps. Addressed to law students but valuable for any oral argument novices. Introductory Texts on the Oral Argument Process [Vol.S. David C. this article assumes that its readers are appellate attorneys and discusses its four topics—the importance of oral argument. Dworsky. the pre-eminent text on oral advocacy 27. the article sets forth the basics of an oral argument. substance. trial court arguments.
a law clerk to three U. 7. The Argument of an Appeal. . 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. Justice Ginsburg’s meticulous legal writing recently garnered accolades from another renowned legal writer. 26 A.georgetown. WASH. Barrett Prettyman. http://www. B. checklists and model arguments follow in appendices.edu/news/advocacy-panel.S. E. 28. 30.com/barrett-prettyman/ (last visited Jan.com/abstract =1307741. Jr. Davis’ decalogue of oral advocacy begins with the cardinal rule of viewing the case from the court’s perspective and ends with the unimpeachable advice to sit down before the allotted time if the argument has run its course.law. & PROCESS 745 (2001). POST. one of the early twentieth century’s pre-eminent lawyers. Supreme Court.. Apr. Gerald Lebovits. 16 (1978).KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 2011] A Compendium of Legal Writing Sources 28 417 before the U. J. DAVIS 531 (1973). PRAC.S.html?hpid=topnews. accounting for the exigencies that lawyers before the U.S. appellate courts. 2011). Judge Lebovits. As an aside. Supreme Court and at least one case in every 29 federal circuit court.. Supreme Court and other appellate courts now face. LAWYER’S LAWYER: THE LIFE OF JOHN W. Supreme Court and. Appellate Advocacy: From Desk to Podium http://www. Davis (18731955). Barrett Prettyman. His accumulated wisdom is captured in this updated edition. John W. Supreme Court Advocacy: Random Thoughts in a Day of Time Restrictions. The book’s author is one of today’s foremost appellate advocates. 12. 895 (1940). adds to Davis’ decalogue of recommendations for an oral argument. 31 Supreme Court cases. HOGAN LOVELLS. 22.washingtonpost. 2009. 72 QUEEN’S BAR BULL. Jr. In this article. Texts Providing Pointers on Oral Advocacy 71. 2011). APP. E. Prettyman. 4 LITIG. 1 (2008).S. http://www. more generally. 72. enumerating ten do’s and ten don’ts for attorneys hoping to capitalize on their oral arguments. Chief Justice Roberts. WILLIAM H. See Barristers’ Council Appellate Div. Supreme Court justices and counsel in more than 150 U. reprinted in 3 J. argued 140 30 cases before the U. Ginsburg Gives No Hint of Giving Up the Bench.. 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. available at http://ssrn.S. HARBAUGH.B.A.com/wp-dyn/content/article/2009/04/11/AR 2009041102297. having argued thirty-one cases before the U. See Robert Barnes. 29. Winning Oral Argument: Do’s and Don’ts.pdf (last visited Feb. 73.hoganlovells. This is Davis’ classic address to the Association of the Bar of the City of New York. Davis.S. 31.
largely discuss how to draft legal documents other than memoranda and briefs taught in first-year legal writing courses. letters.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 418 Washburn Law Journal VIII. Mary Barnard Ray & Barbara J. After differentiating adversarial legal writing from objective legal writing. Smith. 2003). Advanced Legal Writing and Oral Advocacy: Trials. A chapter on strategies for moot court and beyond concludes the volume. opinion letters. ADVANCED LEGAL WRITING BOOKS [Vol. and miscellaneous topics). scholarly writing. Appeals. which are generally organized by document type. organized by document type. argument sections. Professor Smith’s book tracks the Aristotelian 32. A more extensive bibliography on this subject. This book weaves insights from other disciplines and academic and pragmatic perspectives with a description of writing techniques that bolster accuracy. by former trial and appellate attorneys and current law professors. and scholarly articles and other research papers. literary and classical rhetorical theory. Legal Writing Beyond Memos and Briefs: An Annotated Bibliography. judicial opinion writing. collaborative lawyering. motions.or third-semester legal writing students and moot court participants. 76. Murray & Christy Hallam DeSanctis. and appeal. Cox. teaching readers how to draft statutes. pleadings. e-mails. This textbook for an upper-level legal writing class employs an interdisciplinary approach with contributions from the fields of cognitive psychology. discussion sections of research memoranda. alternative dispute resolution. notices of motion. and orders. The authors largely sliver their text by document type. exam writing. ASS’N LEGAL WRITING DIRS. and Moot Court (2009). is available for readers seeking 32 comprehensive guidance. accessibility. corporate documents. general correspondence. The texts. jury instructions and verdict forms. Teitcher. arranged by ostensible complexity. Michael D. ethics. This textbook. Beyond the Basics: A Text for Advanced Legal Writing (2d ed. jury instructions. interrogatories. 2008). 50 This section lists helpful books for practitioners and students in advanced legal writing classes. Michael R. 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. 133 (2008) (covering affidavits. 5 J. Advanced Legal Writing: Theories and Strategies in Persuasive Writing (2d ed. contracts. objective and persuasive statements of fact. and other regulations. Unlike the preceding books in this section. legislation. contracts and transaction documents. wills and trusts. embodies their understanding of adversarial legal writing and oral argument in practice. rules. the authors describe the structure and style of a general pre-trial motion before homing in on motions to dismiss and summary judgment motions. and appeal. issues. trial. and moral theory. See generally Carrie W. settlement agreements. 74. motions. pleadings. which is intended for second. 75. .
edu/content. answers. UCLA’s law library has created a guide to online research beyond LexisNexis and Westlaw.washlaw. UCLA SCH. e. look for a loose-leaf service. and use librarians. and rule-making (legislation and regulation. 33. The authors. contracts. WashLaw: Legal Research on the Web. For a definition of these terms. For example. law professors. LAW. Elementary Legal Research Texts 78. 34. 2011). describe basic components. sections provide background information. use secondary sources. Mary R. trial and appellate briefs. Sch. talk to an expert. Writing for Law Practice (2d ed. 7. and wills). and for each document type.g. 2011). 74 (1998). read the directions. In each part. Elizabeth Fajans. and reproduce a sample. Shapo. Other topics include rhetorical style (metaphor. and ethos. avoid fishing online. informing and persuading (letters. IX. Many law school libraries 34 also have generated outstanding legal research guides. figures of speech. . This mammoth book is intended to prepare the reader to write in practice.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 2011] A Compendium of Legal Writing Sources 33 419 modes of persuasion: logos. http://libguides. It consists of three parts corresponding to the three major modes of written communication in the law: litigating (complaints.. A. http://www.php?pid= 34909&sid=256638 (last visited Feb.ucla. use a research guide. 77. 7. presenting the conceptual basis underlying each mode and persuasive writing strategies linked to each mode. Online Legal Research: Beyond LexisNexis and Westlaw. use current-awareness tools. 2010). Falk & Helene S. the authors describe how to locate these maps: ask questions. Recognizing that researchers have charted many areas of law. and graphic design) and the ethics and morality of persuasion. and the following sources should assist law students. Law Library. explain the composition process and special concerns. “Here There Be Dragons”: How to Do Research in an Area You Know Nothing About. The article’s title refers to the phrase early seafarers used to demarcate unknown territory on maps. Peggy Roebuck Jarrett & Mary Whisner. fundamental skills are delineated before particular documents relying on those skills are introduced. See. offer tips for law students and other legal writers researching an issue that is terra incognita to them. 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.law. reference librarians at the University of Washington School of Law. literary allusion. LEGAL RESEARCH Exceptional legal writing is the product of exceptional legal research. 6 PERSP. Washburn Univ. see supra note 23. office memoranda. pathos. and motions). Hugh & Hazel Darling Law Library. and judicial opinions).edu/ (last visited Feb.
80. secondary authority. and their alternatives and case citators). federal administrative law. It also explains how they can disentangle themselves from conundrums that invariably arise during the research process. treatises. and mini-libraries). and rules of procedure and ethics. regulations. Christina L. cases. Impeccable Research: A Concise Guide to Mastering Legal Research Skills (2010). statutes. 82. Edinger. legislative history. court reports. with chapters at the heart of the text describing specific sources under the following headings: secondary sources. Professor Osbeck’s 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. court rules and practice. digests. Berring & Elizabeth A. and research strategies. Osbeck. a discussion of print and electronic research and citation format. 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. administrative and executive publications. Mark K. constitutional law. American Law Reports annotations. case law (reporters. 81. The Process of Legal Research (7th ed. administrative materials (regulations. often first-year law students. Unlike the three previous books listed in this section. user-friendly textbook for beginning legal researchers introduces legal research generally and electronic legal research. sample pages. Kunz et al. After an overview of legal research and a discussion of how to approach a legal research assignment. . Basic Legal Research: Tools and Strategies (4th ed.. Sloan. 2009). Each chapter describes at least one source and how to research and cite that source. Amy E. but its coverage is more expansive. and subject-matter services. and adjudications. agency decisions. 50 79. federal legislative history. legal periodicals. 2005). Finding the Law (12th ed. Advice for devising a research plan and generating search terms also is included. citators. Appendices provide state legal research guides and bibliographies and sources of federal regulatory agency rules. Topics covered include the context of legal research. This text’s accessibility to the incipient legal researcher is comparable to the preceding text’s. with a set of research situations and exercises concluding the textbook. Robert C. restatements. primarily will use Internet-based research tools. Each of these chapters is uniformly organized with an introduction. and a checklist. statutes. the authors compartmentalize sources as follows: secondary sources (encyclopedias.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 420 Washburn Law Journal [Vol. This venerable legal research book by two librarians at UCBerkeley Boalt Hall School of Law assumes readers. 2008). and other sources). This popular. enacted law (codes and session laws and legislative process materials).
and international law. Utah S. the executive. Olson. Univ. state and municipal legislation. federal legislation and legislative histories. 36. Chapters on international law and comparative law follow. leading me to classify the text as a more ad37 vanced guidebook.utah. 1989). Although this authoritative legal research book is designed for law students. An abridged version of this volume. Armstrong & Christopher A. 35. Advanced Legal Research Course Outline (June 15. J. the legal research process. court records. See. Fundamentals of Legal Research (9th ed. COHEN. along with an appendix listing almost 500 major treatises and loose-leaf services by subject. court rules and procedures. federal tax research. BARKAN.S. . with an introduction to legal research. Steven M. secondary sources. statutes. state legal research guides. 2009). 2009). ROBERT C. American Law Reports. ROY M. 2009). Barkan. e. MERSKY & DONALD J. 2009). and administrative law.S. with subsequent chapters organizing primary authorities based on their fountainhead—the Constitution. case law and citators. 84. Supreme Court. many first-year students may find its 800-page bulk overwhelming. restatements. closing out the volume.J. constitutional law and the U.pdf. and legal research in U.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 2011] A Compendium of Legal Writing Sources B. is also available. 85. See STEVEN M. and texts. territories. spanning more than 600 pages. see also STEVEN M. Advanced Legal Research Texts 421 83. and model acts. Next. Secondary authorities referenced include loose-leaf services. expanding upon subjects covered there.. International law and legal research in the United Kingdom occupy separate chapters. Quinney College of Law.D. legal encyclopedias. restatements. and other resources. Knott. legal periodicals and indexes. Principles of Legal Research (2009). with electronic legal research.g. Often used in ad35 vanced legal research courses. and appendices on legal abbreviations. MORRIS L. practice materials. BARKAN.edu/_personfiles/58/SYLLABI/5143. BERRING & KENT C. LEGAL RESEARCH ILLUSTRATED (9th ed. ASSIGNMENTS TO FUNDAMENTALS OF LEGAL RESEARCH (9th ed.law. 37. ROY M. available at http://privateweb. citators. this textbook complements the instruction students receive in a first-year legal research course. treatises. regulations and administrative law. OLSON. Chapters are formally outlined and arranged based on the jurisprudential approach to legal instruction. DUNN. MERSKY & DONALD J. and the judiciary. DUNN. HOW TO FIND THE LAW (9th ed. among other topics. Where the Law Is: An Introduction to Advanced Legal Research (3d ed. Roy M. legal citation form. updating the original hornbook with Internet and other electronic sources. (2) periodicals. Topics include searching. and legal writing being followed by discussions of court reports. the legislature. federal and state legislative history. Mersky & Donald J. secondary sources are grouped into three parts: (1) encyclopedias. This successor 36 text to the classic How to Find the Law is twenty years in the making. and (3) reference resources.S. The first chapter explains the context and process of research. 2010). uniform laws. Dunn. Kent C.
Wendy B. Chapters describe omitting surplus words. and verve in the legal writing context. Tom Goldstein & Jethro K. 2002). This 39 legal adaptation of Strunk and White’s quintessential The Elements of Style is a mainstay on my reading list for first-year legal writing students. and the consequences of subpar legal writing may be dire. and punctuating carefully. WHITE. the client’s loss of claim. is comprised of three guides: a guide to effective writing. editing. . using base verbs. Richard C. The Lawyer’s Guide to Writing Well (2d ed. 39. 2009). not nominalizations. revising. Davis. Armstrong & Timothy P. Plain English for Lawyers (5th ed. Professor Wydick’s text helped pioneer the movement to extinguish legalese. The authors. 87. Wydick. transitions. and usage. 50 Style is inextricably married to substance in the presentation of legal ar38 To guments. diction. using short sentences. 2009). drafting. punctuation. This book encourages readers to envision themselves as professional writers and 38. Subjects covered include planning. LEGAL WRITING STYLE [Vol. Just Writing: Grammar. & E. 89. 8 PERSP. preferring the active voice. a guide to correct writing. This text. arranged by length. organization. or the client’s entanglement in needless litigation). arranging and choosing words carefully. one of the few legal style books geared toward beginning legal writers (though instructive to a wider audience). grammar. Usage notes and an editing checklist round out the text. WILLIAM STRUNK. Anne Enquist & Laurel Currie Oates. concision. A. Thinking Like a Writer: A Lawyer’s Guide to Effective Writing and Editing (3d ed. and it practices what the author preaches. crusade against expendable jargon in legal writing and cover the process of writing and management of prose (form.B. sentences. help readers write with more clarity. JR. 2005). THE ELEMENTS OF STYLE (4th ed.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 422 Washburn Law Journal X. conveying its message in 139 pages. a journalism school professor and law school writing program director. 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. 97 (2000) (summarizing cases in which the abysmal quality of the attorney’s writing led to court sanctions. syntax. structure. and revision) from a journalistic perspective. and Style for the Legal Writer (3d ed. Consequences of Ineffective Writing. Punctuation. 1999). avoiding language quirks. and a guide for English-as-a-secondlanguage writers. this section lists works concentrating on legal style as opposed to expository style. Legal Writing Style Books 86. includes handbooks and reference guides addressing particular stylistic problems that legal writers may encounter. Terrell. 88. paragraphs. Lieberman. Stephen V. and it scrutinizes proofreading a legal document.
carefully craft their explanations and arguments. This handbook is the legal equivalent of A 40 Writer’s Reference. diction. fundamental principles of legal writing (brevity. capitalization. Chapters set forth fundamental rules of usage (punctuation. legalese. and spelling). Appendices contain terms and usage glossaries. numbers. and use expressive tactics. and editing and proofreading. but it lists minutiae omitted from shorter legal style guides—rules and guidelines of which even more mature legal writers may be unaware. legal conventions. typeface. paragraphs. avoid unnecessary jargon. Garner. and post-writing steps and document design. as well as descriptions of citation form. The remainder of the book describes special considerations for the following documents: research memoranda. with other topics discussed including organization. memoranda. clarity. and it provides Internet resources for each referenced subject. legal documents (correspondence. and legal writing blunders. the most widely adopted handbook in the United States for academic writers. Legal Writing Style Handbooks and Reference Guides 90. structural simplicity. citation. footnotes. with subsections in this chapter recommending that readers develop an individual voice. B. 92. 2006). Like the preceding text. and repetition). grammar. Aspen Handbook for Legal Writers: A Practical Reference (2d ed. and sample case and court briefs. wordplay. 2010). various matters of form. The first two-thirds of the book cover particular aspects of style: punctuation. A WRITER’S REFERENCE (7th ed. . 2009). Its five sections discuss writing mechanics (grammar. document design. and editing. spelling. grammar. Deborah E. pleadings. briefs. Bouchoux. the features of effective legal writing and organization. The Elements of Legal Style (2d ed. typographic symbols. DIANA HACKER & NANCY SOMMERS. opinion letters. and rhetorical figures in law (comparison. Garner. punctuation. organization. diction. Bryan A. troublesome words. introductions. and sentence and paragraph construction). 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. persuasion. and syntax). 91. This style guide remains a definitive text in the field with its brevity relative to Garner’s other style books (two of which follow) perhaps endearing legal writers to it. syntactic arrangement.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 2011] A Compendium of Legal Writing Sources 423 editors appealing largely to a legal audience. 40. considerations for English-as-asecond-language writers. Bryan A. syntax. and transactional documents). The Redbook: A Manual on Legal Style (2d ed. this book describes the elements of legal style. words of expression often confused or misused. 2002). An approach to legal style completes the text.
The Bluepages cover basic general rules and the essential rules to cite cases. BLACK’S LAW DICTIONARY (9th ed. For first-year legal writing students and other legal writers stymied by The Bluebook’s current organization and explanations. not a text to be read cover-to-cover. Barris’ text discusses tips to cite the following specific sources including common errors to avoid: cases. grammar and usage. and explanatory parentheticals. The topics are arranged alphabetically. and numbers. regulations. 2009). as well as legislative. This new iteration of the much-reviled but ever-resilient citation guide still contains three major parts: (1) the Bluepages. explaining hundreds of points on usage. services. motions. A description of more advanced general rules—strings. non-periodic and periodic materials. statutes. spelling. The Bluebook: A Uniform System of Citation (Columbia Law Review Ass’n et al. inflection. . 94. A Dictionary of Modern Legal Usage (2d ed. As this nearly 1. 2001). 93. pleadings. while rules ten through twenty-one of the Whitepages refer indepth to the same sources as the Bluepages.. word formation. and punctuation and typography. Rules one through nine of the white pages discuss general rules in more detail than the Bluepages. numerals. and litigation documents and record citations. (2) the Whitepages with citations in law journal publication format.000-page tome’s title indicates. foreign materials. signals. 50 demand letters. quotations. secondary sources. and (3) the tables used in conjunction with the rules. and the Internet. and contracts. constitutions. LEGAL CITATION Citation accuracy is a barometer of credible and compelling legal writing. rules. regulations. Linda J. statutes. legal lexicology and special conventions. 2010). Bryan A. and executive materials. court and litigation documents. Professor Barris’ guide should facilitate comprehension of the frequently scattered citation rules. and international materials. 19th ed. 95. appellate briefs. 2010). which have practitioners’ notes. capitalization. and pronunciation. After an introductory chapter consolidating some of The Bluebook’s essential general rules. and the sources listed here should enable legal writers to draft citations that conform to applicable rules. eds. procedural and court rules. administrative. Barris. Understanding and Mastering The Bluebook: A Guide for Students and Practitioners (2d ed. constitutions. unpublished and forthcoming sources. 41.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 424 Washburn Law Journal [Vol. Garner. A guide to the volume’s essay entries groups subjects under the following headings: style. ordinals. it is intended to be a reference for legal writers and a complement to Garner’s famed Black’s Law 41 Dictionary. XI.
udc. Two 42. Law School Advice Texts 97.org/legaled/statistics/charts/stats%20-%206. discuss effective note-taking techniques. has been adopted by several law schools. Apr. Taylor. of Law. Darby Dickerson. A.law. and appendices including a full text sample memorandum. and flowcharting. citation basics.abanet. 7. are unlikely to ever embark on the hiring sprees of years past). Ameet Sachdev.D. 2011). 96. 2010). 2009). and 43 prestigious employment opportunities wane. 43.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 2011] A Compendium of Legal Writing Sources 425 and symbols—concludes the book. enrollment from 43.518 in 2000-2001 to 49. See. available at http://www. Stropus & Charlotte D. Am.000 per year have been hemorrhaging positions and. LAW SCHOOL ASSISTANCE Advisory texts on the law school experience are being published at an 42 exponential rate as law school enrollment rises. as the transition between college and law school often frustrates new law students. outlining. quotations. David A. http://www. describe how students should read and brief cases. according to a law school dean. the latest year for which statistics are available). A number of 44 law schools suggest that incoming first-year law students read this book. which can seem byzantine to first-year law students. many of whom are unaccustomed to independent thinking as opposed to regurgitation. Enrollment by Gender (1947-2008) (2008). This simplified alternative to The Bluebook. Law School Tuition Hikes Spark Talk of Bubble. rules for electronic materials.C. Arranged by length of text. XII.edu/resource/collection/3079264F-B6E1-4AC6-8837-589279E3A007/suggested_ read ing. e.414 in 2008-2009. ALWD Citation Manual: A Professional System of Citation (4th ed. 2010.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. Clarke Sch. tuition increases. http://articles.D. D. . 27.pdf (last visited Feb. the authors overview the law school experience. Bridging the Gap Between College and Law School: Strategies for Success (2d ed. accelerating pressure on law students to thrive academically. winning competitions. in a series of chapters entitled “putting it all together. First Year & Total J. Univ. 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. Bar Ass’n. TRIBUNE.. its distinguishing feature is a single citation format for practitioners’ documents and scholarly articles. and selecting and evaluating writing samples for employers. 44. Repeatedly contrasting a typical student’s undergraduate experience and professional training in legal academia.pdf (citing an increase of first year J. CHI. Suggested Reading for Law Students. rules for print sources. suggestions for incorporating citations into documents.g. The book’s seven parts address the following topics: general terms and procedures. and. making law review.” explain synthesis. Ruta K.chicagotribune.
study. It also is written in a jocular style. making peace with grades. outlining. Chapters describe how to prepare for law school. The Law Student’s Pocket Mentor: From Surviving to Thriving (2007). McClurg’s roadmap to success passes by every landmark of interest to a beginning law student. Ann L. preparing for class. 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. Austen L. note taking. the Socratic method. Parrish & Cristina C. reaping maximum benefits from classroom discussions. 50 chapters cover law school examinations. and exam preparation. interactions with professors. 2010). shining on exams. from the perspective of a cantankerous law professor. my father. relying on his experience teaching at a variety of law schools. case briefing. more strategies for success. 98. and suggestions for the second and third years of law school and legal employment. This book treads similar terrain as the preceding text in half the space. humorous spirit in the text. Recommendations for extracurricular activities. brief cases. Subjects covered include the top five habits of successful law students. employment. the text backs nearly all of the advice I would provide new law students with anecdotes and scholarship. Director of Suffolk University Law School’s Academic Support . Succeeding in Law School (2d ed. using exercises. Knolton. worksheets. This book’s cheeky title captures the author’s forthrightness and relatively free-wheeling. Herbert N. Iijima. discussing what to expect during the first year and how to flourish in what can be a pressurized environment. Professor Ramy. outlining. and the bar exam follow. choosing classes and extracurricular activities. interact with professors. 1L of a Ride: A Well-Traveled Professor’s Roadmap to Success in the First Year of Law School (2008). and input from other law professors and students. Law school-related topics include preparing for law school. an engineering professor with no legal background. to alleviate the anxieties of incoming 1Ls likely to read the book. 101. Hard-Nosed Advice from a Cranky Law Professor: How to Succeed in Law School (2010). McClurg. Professor Iijima’s book guides law students from the decision to attend law school through their first legal job. 100. Professor McClurg. does not compromise substance for entertainment. outline. though. and approach final exams. Ramy. and checklists to help students approach law school systematically. and maintaining balance. relished the read. paying for law school. 99. and the book’s final chapter offers tips on time management.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 426 Washburn Law Journal [Vol. using knowledge of learning styles to excel academically. Andrew J.
and law school exams. or academic support classes. Professor Calleros’ background in academic support infuses this . study aids. B. knowledge. doctrinal. though covering similar topics. legal writing. Sample essay exam questions in an appendix are followed by dissections of a suggested answer and two weaker answers. Resumes. 105. and job interviews are discussed in the book’s closing chapters. outlining. 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. note-taking. and writing style. Texts on Law School Exam-Taking Techniques 102. 103. 104. How to Do Your Best on Law School Exams (4th ed. Jessica Elliott. Dernbach. John Delaney. 2006). and avoid common pitfalls. 11 PERSP. organizing. Law School Exams: Preparing and Writing to Win (2007). legal synthesis. scoring and grading. writing samples. Part of the popular Delaney series for law students. beginning the process. Charles R. Writing Essay Exams to Succeed in Law School (Not Just to Survive) (3d ed.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 2011] A Compendium of Legal Writing Sources 427 Program. Subjects include how to organize an outline. counter-analysis. and a systematic approach are imperative to academic excellence in law school. moving from process to writing. maintaining a healthy approach to law school. getting ready. legal analysis. Chapters demonstrate that diligence. this book by a law professor delves into more detail about essay exam-taking strategies than the preceding text. Topics underscoring the importance of these qualities include the first days of law school. Professor Delaney begins by describing six exam tasks (and corresponding grading criteria). Sample essay exam problems and responses ranging in quality from poor to exemplary demonstrate the exam-writing principles the author espouses in action. 66 (2003). outline and write lawyerly exam arguments. Teaching Outlining for Exam Preparation as Part of the First-Year Legal Research and Writing Curriculum. study groups. explaining the answer. how cases are incorporated into an outline. John C. signposting. the format of law school classes. This concise book by a law professor helps students develop the analytical skills to write essays for law school examinations. reading and briefing cases efficiently. and how an outline eases preparation for an exam. Calleros. Topics include the reader. and parallels between essay examinations and legal practice. 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. and study schedules. 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. 2010).
to law school exams before describing course outlining. 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”). which introduces complex material in a familiar. Suzanne Darrow-Kleinhaus. Accordingly. civil procedure. later parts describe how students should prepare for exams by synthesizing cases. evidence. and contracts— complete the volume. Written by a former executive editor of the Washington Law Review. The book’s first three chapters discuss what a law review is. and courage. and torts) are presented with evaluation sheets or sample answers. 50 book. what factors students should use in assessing whether to pursue law review membership. The book. The text then overviews and prepares students for the write-on . if not before. This book by an academic support professional treats exam preparation as a semester-long endeavor and acclimates the reader. though. Mastering the Law School Exam (2006). 107. this book synthesizes the experiences of law review members at several law schools to uncover the secrets to success for write-on competition participants. and a final part enumerating exam tips and answers to frequently asked questions is subtitled “your very own ruby slippers. exam-taking essentials. contracts.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 428 Washburn Law Journal [Vol. 106.” Four sample essay exam questions and answers from typical first-year subjects—torts. Issue spotting. Getting to Maybe: How to Excel on Law School Exams (1999). non-legal context before analogizing to the legal context. brains. Making Law Review: The Expert’s Guide to Mastering the Write-On Competition (2008). constitutional law. The text also recognizes that success on law school exams requires a definitive strategy and concerted effort from the first day of class. the book’s opening parts present an overview and a set of law school study techniques. nuanced analysis. with troubleshooting tips included for each component of the paradigm. criminal law. and learning from a disappointing exam grade. property. and sample hypothetical essay questions from a variety of first-year and upper-division subjects (business organizations. C. and how students can become law review members. Richard Michael Fischl & Jeremy Paul. Law students. studying for exams. Texts on Law School Competitions 108. and argument are said to require heart. Wes Henricksen. especially first-years. and tailoring their approach to their professor and to the type of exam. The IRAC paradigm is dissected. but the authors suggest that students should understand and embrace this ambiguity to improve test performance. property. constitutional law. outlining. are often apprehensive about responding to exam questions with contingent answers. likely a law student.
and the articles and books listed below discuss subjects ranging from selecting a topic to disseminating a publication. com/abstract=1393906. Considerations include headings. Law School Competitions in a Nutshell (2003). D. 109.com/cgi/viewcontent. 37 STUDENT LAW. persuasiveness. 78 N. trial advocacy. available at http://works. and writing skills. internal conclusions. topic sentences. 2009). 112. the 400-page text previews the major types of law school competitions—moot court. Larry L.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 2011] A Compendium of Legal Writing Sources 429 competition. ACADEMIC LEGAL WRITING Academic legal writing’s format and conventions differ from those used in legal writing for practice. context. and offers techniques for composing an intriguing personal statement. Ramy. negotiation. BAR J.com/abstract=1681467.be press. 111. Judge . Articles on Academic Legal Writing 113. 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. and legal writing—and discusses mechanical and tactical aspects of the first three at length. 615 (1999). XIII. While the title of this book may imply a brief treatment of the subject. Suffolk Univ. use of authority. Gerald Lebovits. A. Professor Beazley explains her criteria for evaluating an analytical writing sample. Law School Research Paper No. Creating a Writing Sample. Mark E.cgi?article=1005&context=gerald_lebovits. 64 (2006).Y. ST. available at http://ssrn. insights that should be candidates and legal employers. BAR ASS’N J. lists do’s and don’ts. It responds to frequently asked questions. and reproduces portions of a sample memorandum. instructs them how to draft the submission paper and complete the editing exercise. available at http://ssrn. client counseling. relying on the advice of seasoned coaches and other knowledgeable sources. Texts on Selecting and Evaluating Writing Samples 110. 09-25 (Apr. Wojcik. 87 ILL. How to Read a Writing Sample. This article underscores the writing sample’s importance to a prospective legal employer and provides students with guidelines for choosing the best writing samples and editing the selected samples. Mary Beth Beazley. The Right Writing Sample. Academic Legal Writing: How to Write and Publish. Herbert N. Teply. focus. analysis. 24. citing advice from legal writing luminaries. 1 (2009).
ten types of articles. research strategies. This article’s avowed aim is to assist legal writers. writing. 116. readability. drafting. Student Notes. 114. editing. ranging from finding. 229 (2000). excerpts of pre-emption policies. To fulfill this objective. writing. Academic Legal Writing: Law Review Articles. Christian C. Professor Delgado describes reasons for composing a law review article. 115. and corroborating a claim to researching. Books on Academic Legal Writing 117. how to translate the idea into formal prose and ensure ease of composition. especially for law students drafting their first substantial legal paper.F. citation. REV. and publicization. publishing. 1996 UTAH L. 50 Lebovits’ primer on academic legal writing guides the reader through each stage of what can be a cumbersome process. REV. Eugene Volokh. the article compiles timetested techniques used by the author and his colleagues. which ends with appendices containing survey results. especially junior law professors with minimal training. 917 (1996). 2010). Meeker’s article concentrates on two vital research tasks for academic legal writers: finding a suitable topic and checking for pre-emption. but a broader readership may benefit from emulating Volokh’s blueprint for masterful academic legal writing. B. How to Write a Law Review Article. testing. editing. these can be arduous pre-writing steps. This newly expanded edition covers nearly every imaginable topic in its purview. A survey of student-run law reviews and personal contact with members of several law reviews informs the article. and choosing a structure to drafting. Heather Meeker. publication. citing. In Search of the Read Footnote: Techniques for Writing Legal Scholarship and Having It Published. Stalking the Golden Topic: A Guide to Locating and Selecting Topics for Legal Research Papers. and Getting on Law Review (4th ed. L. publishing. Sections discuss how to develop a feasible idea with substantial assistance from a mentor. and publicizing. and marketability of the final product.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 430 Washburn Law Journal [Vol. Richard Delgado. 6 J. topic selection. and representative note and comment topics for student writers concerned about the scope of a typical student-written law review article.S. covering subjects from finding a topic. This adaptation of an address on writing a law review article offers advice the author would have found revelatory as a young academic. 445 (1986). Professor Volokh’s seminal book on academic legal writing is addressed to law students. 20 U. and publicizing a paper. Seminar Papers. Separate chapters discuss the conversion of practical . LEGAL WRITING INST. in efficiently producing and publishing scholarship. a now-obsolete list of specialized legal discussion groups. Day. researching.
While the preceding text may appeal to academic legal writers who are not law students. 120. 2010). books on artful and audience-centered legal writing. and law review competition papers—and parses the academic legal writing process: choosing a subject. cite checking. 119. (4) refining by evaluating and revising the draft. Law Review Notes. 118. 2006). Despite its title. and a general editing checklist follow. and Execution (2010). Shorter versions of Black’s Law Dictionary are also available. Evaluating and editing others’ work as a law review member also are discussed. writing (outlining. and contains nearly 3. seminar term papers. which has been touted as the world’s most widely cited law book since its first publication in 1891. . offers alternate spelling or equivalent expressions for more than 5. law review notes. Scholarly Writing: Ideas. Elizabeth Fajans & Mary R. The text tracks three student papers from origination through publication as illustrations of the recommended writing process’ efficacy. The current edition defines more than 45. XIV.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 2011] A Compendium of Legal Writing Sources 431 work into an article. Scholarly Writing for Law Students: Seminar Papers. this book does not discourse about scholarly writing in general. revising and polishing. Examples. Black’s Law Dictionary (9th ed. Corresponding West Key Numbers are 45 45. law review. See BLACK’S LAW DICTIONARY (abr. writing competitions. Clark & Kristen E. and citing). (2) preparing to write the paper. The authors distill the academic legal writing process into five steps: (1) thinking about the topic and thesis. A fully annotated student article and shorter examples with explanations interspersed throughout the book illustrate the principles that Volokh prescribes. this text is designed mainly for law students.000 terms including law-related abbreviations and acronyms. 2009). developing a thesis. its intended audience is law students required to write research papers for their upper-division courses. Jessica L. Falk. and Law Review Competition Papers (3d ed.300 terms. and academic ethics. researching. the book introduces three types of student academic writing in law school—seminar papers. A legal writing bibliography would be incomplete without a reference to this monumental legal dictionary. BLACK’S LAW DICTIONARY (3d pocket ed. and (5) finishing by polishing and publishing the paper. a venerable reference. MISCELLANEOUS TEXTS Sources listed in this final section discuss subjects not encompassed in the compendium’s other sections. drafting. Murray. (3) executing by writing the draft. 9th ed.000 quotations. Written from the perspective of two legal writing professors. 2005). and publishing.
88 ILL. and some entries also specify the date when a term was first used in an English-language context. or citizen. and that an effective legal writer must be able to modify a document to satisfy the expectations of the intended legal audience. 123. and his forty rules collectively should help legal writers draft lucid documents. Mark Painter. 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. The Legal Writer: 40 Rules for the Art of Legal Writing (4th ed. 2005). Each short chapter discusses one of these dozen potential audiences and offers three primary recommendations to appeal to that audience. 50 provided for select entries. is a proponent of the plain English movement in legal writing. e-mail recipient.KHAN_MACRO_FINAL 3/29/2011 1:03:57 PM 432 Washburn Law Journal [Vol. distinguishing between “that” and “which”). supervisor. Maureen B. transactional lawyer. consumer. An Editing Checklist. opposing counsel. This book recognizes that the audience for a legal writer’s work is not a monolithic entity. mediator. trial or appellate judge. Each rule is treated in a couple of pages. Writing for the Legal Audience (2003). 415 (2000). Wayne Schiess. knowing your audience) to the micro-scale (for example. an experienced jurist. BAR J. which may be a prospective employer. . rendering this book a useful source for busy readers who hope to gradually refine their prose by implementing a few suggestions at a time. and columnist. 121. academic. The recommendations range from the macro-scale (for example. The author. notably in a judicial opinion. 122. client. Collins.
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