Legal writing: analytic, interactive, and nonroutine. A computer can’t do it.

One of the most difficult lessons to get across to my students is that good legal writing requires them to exercise their imaginations, that I cannot merely tell them what they are supposed to do. It’s no surprise that it’s so difficult to get this message across; even within law schools there are many who believe legal writing is nothing more than composition and citation. So I thought it was interesting that Paul Krugman wrote today on his blog about “the influential analysis of Autor, Levy, and Murnane . . . , which argued that the crucial difference in terms of possible replacement of humans by machines was one of routine versus non-routine, rather than white-collar versus blue-collar . . . .”

In the article Krugman refers to, the authors set forth a chart dividing different tasks into “analytic and interactive tasks” and “manual tasks.” They also then divide each of those categories into those that are “routine” and “nonroutine.” I was relieved, but not surprised, to find that legal writing is an analytic and interactive task that is nonroutine:

Why is boilerplate called boilerplate? It’s durable enough to use over and over.

Thinking about the uses and abuses of boilerplate, I began wondering where the term came from. Boilerplate is language that consists of a “standard formulation uniformly found in certain types of legal documents or news stories” or a “thick plate iron used in the production of boilers.” Why did the latter become the former? As David K. Israel explains over at mental_floss:

[S]team boilers were built from very heavy tough steel sheets. Similar sheets of steel were also used for engraving copy that was intended for widespread reproduction in multiple issues of newspapers—things like ads and syndicated columns. Regular, here today, gone tomorrow copy was set in much softer, durable lead.

Words and Ideas as Common Property: Lewis Hyde, Stanley Fish and lawyers as “plagiarists”

In yesterday’s New York Times, Robert Darnton reviewed Lewis Hyde’s newly published Common as Air: Revolution, Art, and Ownership, describing it as “an eloquent and erudite plea for protecting our cultural patrimony from appropriation by commercial interests.” As Darnton explains, “Hyde invokes the [founding fathers] in order to warn us against a new enclosure movement, one that would fence off large sectors of the public domain — in science, the arts, literature, and the entire world of knowledge — in order to exploit monopolies.” Acknowledging that Hyde’s historical approach might seem a “dubious” way of “defending the cultural commons” and that in other hands it could amount to nothing more than picking and choosing among “a stockpile of quotable chunks of wisdom,” Darnton finds the book compelling:

[Hyde] does not merely cull the works of the founding fathers for quotations. He pitches his argument at a level where historians and political philosophers have contributed most to our understanding of intellectual history. Instead of treating the ideas of the founders as self-contained units of meaning, he explores their interconnections and shows how they shared a common conceptual frame. Not that he pretends to have uncovered anything unknown to the authorities he cites, notably the historian J. G. A. Pocock, whose studies of civic republicanism reveal how early modern philosophers drew on a current of thought about the nature of citizenship that goes back to ancient Greece and Rome. Hyde builds his argument by telling stories, and he tells them well. His book brims with vignettes, which may be familiar but complement one other in ways that produce original insights.

It is one of the genuine highlights of my professional career that Hyde draws on an article I’ve written. Hyde’s scope is wide, and he explores in depth the practices of many different “communities” — including, among others, the world of scientific research and the programmers that collectively created the World Wide Web — to show that treating knowledge and invention as a commons is both widespread and productive. One such community is the legal profession, which might seem odd in that the widely held understanding that your intellectual product is as much your property as is your house is such a legalistic conception:

Many . . . communities of practice have common holdings made durable and lively through normative rather than legal stints.

One of these may be found, oddly enough, in the legal community itself, where, as in some scientific circles, collective tasks get done and “collective beings” come to life through the agreed-upon non-ownership of creative labors. The fact is that in legal circles when judges issue opinions they often “plagiarize” from the briefs presented by contending parties. To take but one example, in 1937 Supreme Court Justice Benjamin Cardozo lifted, without attribution, verbatim sections of the Roosevelt administration’s brief in his decision upholding the Social Security system. Of course, “plagiarism” is the wrong term here, for legal writing does not come from the kind of author to whom credit is due. Legal writing is mostly collaborative, for one thing, produced by writing communities. In addition, legal opinions are public documents, belonging to no one because they belong to all of us. Nobody has ever successfully claimed copyright infringement for the unauthorized use of someone else’s legal argument. In fact, legal writers want to have their work appropriated. Peter Friedman, a lawyer whose analysis I’m drawing on here, has written: “I knew I had written the best brief I possibly could on a motion when the court’s opinion announcing its decision was directly cut-and-pasted from my brief.”

If lawyers were the kind of authors who claimed a property in their work, they would potentially deprive both the work and themselves of their public roles. As with eighteenth-century pamphleteers, or with the creators of the World Wide Web, self-erasure attends a lawyer’s entry into the public sphere, not self-assertion. The law is collective; it belongs to all citizens, and consequently we ask that its practitioners present themselves as public persons with copyduties rather than copyrights. In this context, to sample someone else’s brief is a favor, not a theft; it helps a lawyer be a lawyer. Common ownership makes that species of public life possible. (Common as Air at 248-249.)

Interestingly enough, this passage has some bearing on an exchange I had recently with the incredibly accomplished lawyer and blogger Scott Greenfield. Greenfield wrote a blog post criticizing a piece Stanley Fish wrote in the New York Times that argued that plagiarism as an offense is not a moral wrong, but, rather, the product of particular rules against the use in particular contexts of others’ words and ideas without attribution. [Fish wrote a second piece on the topic, responding to critics of the first piece, here.] The necessary corollary of Fish’s point is that in other contexts the use of others’ words and ideas without attribution is perfectly acceptable. Greenfield’s disagreement with Fish focused on Fish’s assertion that “lawyers and judges in fact do [appropriate words and ideas without attribution] all the time without the benefit or hindrance of any metaphysical rap.” Greenfield wrote, “No, Stanley, I will not turn the other cheek, no matter how much I love the platitude about reinventing the wheel.”

I tried to explain in the comments to Greenfield’s post where I thought he had missed Fish’s point (which is very much related to Hyde’s). I will try to do so more clearly here inasmuch as he and I seemed to speak past one another in that particular exchange.

In law school, plagiarism is the use of the words or ideas of others without attribution. It is a grave offense that can lead to harsh discipline and even might threaten the student’s ability to someday be certified to practice law. Strict compliance with the need to attribute words and ideas drawn from others is deemed necessary because the point of the academic process is to teach the students to put together and convey ideas clearly and to assess their capacity to do so. Thus, using words or ideas of others without attribution is tantamount to fraud — the reader of those words and the ideas they convey is misled into believing they are the product of the student’s intellectual processes alone, and the reader conducts an activity central to the academic process — grading those words — in reliance on that belief. If I were to read Scott Greenfield’s words under the mistaken belief they were the words of a student whose paper I was grading, I would give him a much better grade than he would earn if I knew he were just quoting Greenfield.

In legal practice, however, it is only the quality of the words that matter. Whether contract language originated with the lawyer who drafted the contract or a paragraph in a brief explaining a line of authority relevant to the brief’s argument was cut-and-pasted from a brief the lawyer who submitted the brief found online doesn’t matter. What matters is the effect of the words themselves. And, in fact, lawyers almost always begin drafting contracts by cannibalizing other contracts and forms. Yet they never cite to or otherwise acknowledge those sources. There is no reason for them to do so. And, as the passage from Hyde above makes clear, judges cut-and-paste from lawyers’ briefs. In fact, the entire arena of legal writing in practice is rife with unacknowledged borrowing.

And of course it’s no sin. That’s the point. Which Greenfield acknowledges without realizing it’s the point when he writes that a judge who appropriates the words from a lawyer’s brief is accepting a “gift,” not engaging in plagiarism:

As for judges taking language out of my brief, that’s not plagiarizing, but the purpose of a legal brief, to provide the court with the language to use in his decision. That’s exactly what I’ve written it for, as my “gift” to the judge to use in deciding the case. Again, entirely different from plagiarizing.

But that precisely is Fish’s point. Appropriation without attribution isn’t the moral equivalent of the theft of private property. It’s wrong in some contexts and not in others. So in some contexts it is defined as plagiarism and in others to call it “plagiarism” is to misspeak.

Greenfield’s other retort to Fish also reflects his misunderstanding of the point. Greenfield states that lawyers do provide attribution to the words and ideas for others. That’s what the whole obsession with citation is about:

[W]e do not lift language without attribution. Indeed, that’s what all those silly case names and the “358 U.S. 973″ stuff is all about. It’s the lawyers’ way of attributing, Stanley. It’s called a citation, and it’s our regime. What you do not see at the end of a court decision is the copyright and command that it not be used without permission. Use of court decisions is not merely anticipated, but required in most circumstances. That’s the peculiar way law works.

But the attribution provided by citation in legal briefs and opinions does not serve the same purpose as does attribution to a student’s sources. Lawyer’s don’t provide citations to the authorities they quote and rely on because their failure to do so would result in prosecution for a moral offense. Instead, lawyers provide citations because the citations signal the identity of sources for words, actions, and ideas that have persuasive weight because of who those sources are.

In other words, if I lifted language verbatim from a court decision without quotation marks or citation in a brief I wrote to a court I would suffer no harm. You might object that this possibility is a mere hypothetical, but you would be wrong. If an argument — and even precise words — come from a court that has no controlling weight in the court to whom I am submitting the brief and I have no reason to believe the identity of the court would lend any genuine persuasive weight to the argument, I would be remiss if I did provide the citation. The citation itself would raise a question in the mind of the judge to whom I was submitting the brief — why should I care about this court’s words, ideas, or actions? — that would distract from the persuasive effect of the argument itself.

And, indeed, as a general matter as a lawyer there is little reason to cite to law review articles unless there is reason to believe the author of the article is someone who carries genuine persuasive weight. A judge’s reaction otherwise is likely to be along the lines of this: “A law review article can pretty much assert anything that can win the approval of a student editor. Why should I assume it has any authority merely because it’s published in a law review?”

Would the article’s author have any claim against a lawyer who lifted words or ideas from his article and used them in a brief without attribution? I cannot believe so, nor am I aware of any standard or rule the lawyer would be violating.

And in contract and instrument drafting, of course, lawyers don’t even provide citation for the sources of their words.

I think it is important in understanding what Fish was writing about to understand these different functions of citation. On the one hand, there’s citation to validate the relationship between the words and ideas and the author’s identity. On the other, there’s citation to signal that particular words and ideas come from a source that must be reckoned with by the reader. They are two entirely different functions, and in legal practice the latter is the one that matters. The former does not. And so you have never seen a lawyer suffer any adverse consequences for plagiarizing.

But if any of my legal writing students are reading this, be on guard! Students must provide attribution to the words and ideas they appropriate from others.

Just say it!

It is a truth often assumed that a lawyer in need of an argument must arm herself with rules stated in legalese. There could be few more difficult assumptions to overcome in educating new lawyers.

One of my more profound light bulb moments as a young lawyer came a few months into my first job, after I’d written the first draft of a brief for a partner. After he’d had a chance to review the draft he called me into his office to discuss it. I entered, carrying, of course, the draft that by this time I’d virtually memorized. He asked me why I thought we’d win. I glanced at the draft and he said, “No. Put it down. I want you to tell me in your own words, in plain English, without telling me what the cases say.” So I slowly sputtered out a brief explanation in plain English, thinking that this was going to be painstaking, that the simple plain English explanation would be followed with a discussion of each case and the reasoning of each judge in each case, and then we’d have to cobble all these pieces together . . .

In response to my plain English explanation, he said, “Then why didn’t you just say that?” I blinked, and asked in stupid amazement, “I can do that?” He laughed, and answered, “That’s exactly what you are supposed to do.” Wow, just explain in plain English, without resort to legalistic rules and long chains of reasoning from premises established by Lord Blackstone? What an amazing idea, and what a truly difficult one to grasp.

I was reminded of this today when I read the post at Lawyerist.com entitled “Improve Your Legal Writing: Just Say It“:

Say what you want to say. Do not imply it, do not hint at it, just say it. This can be difficult at times, but it will improve your writing, and make your arguments more persuasive.

Is there a connection between the failure of law schools to teach legal practice and the 2d class status of those who do teach legal practice?

I have of course made the point that law schools oddly enough do not emphasize training their students to be lawyers. Some even say law schools are woefully inadequate in doing so.

I can’t help but think there’s some connection between this disconnect of the academy from the profession and the fact that the people in law schools who do focus on teaching students how to practice law are generally not tenure track faculty. They are what Peter D.G. Brown in “Confessions of a Tenured Professor” calls “contingent faculty.” Although he is writing about college faculty, his observations certainly have their analogs in law schools:

I must confess that belonging to the de facto elite minority makes me very uneasy. Most tenured faculty view themselves as superior teachers with superior minds. In this view, the arduous six-year tenure process clearly proves that all of us are superior to “them” and have deservedly earned our superior jobs by our superior gifts and our superior efforts. I must also confess that we tenured faculty really do appreciate the fact that ad-cons have unburdened us from having to teach too many elementary foreign language courses, English composition and the many other tedious introductory, repetitive and highly labor-intensive classes, to which we tenured souls have such a strong aversion that it must be genetic.

And so we have “a two-tiered system where [tenured faculty] make at least three times as much per course as [contingent faculty] and enjoy all the other wonderful perks of tenure: lifetime job security and the academic freedom it provides, regular opportunities for advancement and promotion, comfortable pensions, large furnished offices, telephones, computers, sabbaticals and other generous leave opportunities — the list goes on and on.”

Brown is genuinely shocked at what legal writing professors and clinicians know too well is the predominant view of the “scholars” on law school faculties:

I confess that I must have been overly naïve, but I was utterly dumbfounded when an administrator repeatedly told me that he saw no value whatsoever to the institution in keeping any adjunct instructors more than a couple of years, after which they ought to simply move on and find something else to do. I’m sure my tenured colleagues would find it totally unacceptable if they could be told at the end of any semester that they should simply leave, that there was no value to their accumulated expertise, thank you, because the college wished to hire a fresh young face at a lower salary.

Brown is worried about the effects of this two-tier system on students, just as I am about the focus by law faculties on legal scholarship at the expense of legal practice:

It is time that more tenured faculty woke up to the fact that their entire professional existence, replete with their comfortable incomes, their fascinating research, their coveted sabbaticals, their agreeable teaching loads of less labor-intensive and more satisfying courses — all this is made possible by the indispensable efforts of a million ad-cons doing so much more for so much less. Equitable compensation, health and retirement benefits, opportunities for advancement and professional development: all these should be available for everyone in higher education and are long overdue. Since teachers’ working conditions equal students’ learning conditions, it is a truly deplorable message we are sending our students!

His description of non-tenure track faculty at the college level matches my experience at the law school level: they “are trying desperately to find summer work, praying that their cars will run for another year and wondering if their children will even be able to afford college.” Moreover, these professors “typically focus on teaching, and the precarious nature of their employment drives them to excel in their classroom performance. Not surprisingly, they often have a more lively interest in developing innovative pedagogy.”

And so Brown issues a call for action from his tenured colleagues:

Tenured faculty members across the country need to wake up now and begin to play a crucial role in supporting equity for their contingent colleagues. . . . If more tenure-track faculty would summon the courage to speak out in support of their fourth-class colleagues, it could really make a decisive difference . . . . Not only are tenured faculty members largely immune from retaliation; they possess widespread credibility plus significant monetary and other resources to help tip the scales in favor of equity.

PowerPoint might make you dumb, but understanding why can help keep you from being dumb even when you don’t use PowerPoint.

Edward Tufte is the world’s premier expert on the graphic presentation of information.  In the wider world he’s probably best known for his article, PowerPoint Does Rocket Science–and Better Techniques for Technical Reports, which (1) explained how, in connection with the Columbia space shuttle disaster, a PowerPoint presentation misled NASA decision makers regarding the risks to the shuttle posed by the impact of a piece of foam insulation that broke off of the shuttle’s fuel tank at launch, struck the shuttle’s left wing, and penetrated that wing’s thermal insulation, and (2) made a strong case that it is virtually impossible to convey any complex information using a PowerPoint presentation.

In a 2003 article entitled “PowerPoint Makes You Dumb,”  Clive Thompson, summarizing Tufte’s article, wrote: “When NASA engineers assessed possible wing damage during the mission, they presented the findings in a confusing PowerPoint slide — so crammed with nested bullet points and irregular short forms that it was nearly impossible to untangle. ‘It is easy to understand how a senior manager might read this PowerPoint slide and not realize that it addresses a life-threatening situation,’ the [Columbia Accident Investigation Board] sternly noted.”

Further summarizing Tufte’s article (which is really worth reading in its entirety), Thompson wrote: “[The low resolution of a PowerPoint slide means that it usually contains only about 40 words, or barely eight seconds of reading. PowerPoint also encourages users to rely on bulleted lists, a 'faux analytical'' technique, . . . that dodges the speaker's responsibility to tie his information together. And perhaps worst of all is how PowerPoint renders charts. Charts in newspapers like The Wall Street Journal contain up to 120 elements on average, allowing readers to compare large groupings of data. But, as Tufte found, PowerPoint users typically produce charts with only 12 elements. Ultimately, Tufte concluded, PowerPoint is infused with 'an attitude of commercialism that turns everything into a sales pitch.'''

Think of the difference between a low resolution photo and a high resolution photo of the same scene -- the viewer of the low resolution photo remains ignorant even of the possible presence of information present in the high resolution photo, much less the precise nature of that information.

Tufte self-publishes his books, not because he wouldn't be able to attract a commercial publisher, but, rather, because by self-publishing he can control entirely the manner in which he presents his material. Since his entire mission is to explain how to effectively present graphic information, that control is crucial to his work.

What does the effective presentation of graphic information have to do with lawyering, which primarily relies on the use of verbal information? Plenty. The principles applicable to the effective presentation of visual information are the same principles applicable to the effective presentation of verbal information. Important information must be highlighted, the conclusions must be supported with detailed, "high resolution," step by step explanations and the telling use of narrative, and anything extraneous to the points being made has to be cut out. You must also be acutely aware of your audience and the precise purposes you are trying to achieve. Moreover, as Ruth Anne Robbins has so effectively demonstrated in her article, "Painting With Print: Incorporating concepts of typographic and layout design into the text of legal writing documents," the visual appearance of even our written work is crucial to its effectiveness. Finally, of course, our culture (including our legal culture) is one that increasingly relies on the visual presentation of information. There is no denying, however, that a well written brief, an effective oral argument, or a successful classroom discussion is like a high resolution photo, while a PowerPoint presentation of of the same information is like a low resolution photo of the same subject.

In short, Tufte is exactly right in PowerPoint does Rocket Science when he concludes: "Serious problems require a serious tool: written reports."

But again, merely using words instead of PowerPoint slides isn't the answer. The words need to be chosen and arranged effectively. My students often make the same mistake the NASA engineers made in their PowerPoint presentation, which did in fact contain statements meant to convey the substantial risk that resulted in the Columbia's disintegration upon its reentry into the earth's atmosphere. The problem was that the crucial information was buried in a place and amidst so much other, misleading information that it was impossible for the audience to notice it.

It reminds me of my students when, in response to feedback they don't like, come to me with their work and argue that they really did include in their writing the important points I've said they've neglected. They even can point me to the words that I can see they really did mean to make those points. But those points are either expressed in language that is too obscure or are put in places in which they do not fit into an effective overall analysis. It's not just student's, of course. All of us have those moments when we believe we have expressed our opinion on a subject effectively, but if that if that opinion is unconnected to the evidence, authority, and reasoning that supports it, if it is buried in words that don't support that opinion, or if in any other way its truth is obscured, it might as well not even be there.

Addendum: here's one example of stupid verbal argument that bases its conclusion on the information it presents but is too "low resolution" to make its conclusion convincing. The Washington Examiner argues that "[g]overnment workers, especially at the federal level, make salaries that are scandalously higher than those paid to private sector workers.” I have to admit I was startled when I saw the editorial’s title: “Want to get rich? Work for feds.” Sorry, but none of the rich people I know of outside of Congress (which doesn’t make you rich, but, due to the cost of running for office, requires you to be rich) are government workers.

So what information does the Examiner base its conclusion on? “As of 2008, the average federal salary was $119,982, compared with $59,909 for the average private sector employee. In other words, the average federal bureaucrat makes twice as much as the average working taxpayer.” The Examiner even has a cool little graph to make the same point visually!

What’s the problem with the argument? It takes no account of the differences in education, training, and ability required to do all those federal jobs and the education, training, and ability required to do the jobs done by “the average private sector employee.” How many government jobs are there that compare to the legion of private sector jobs that pay minimum wage to stock shelves in superstores, flip hamburgers in fast food restaurants, or the like?

I know plenty of government employed lawyers. They really do make more, even much more, than “the average private sector employee.” But they make less, much less, than private sector lawyers whose education, training, and ability are no better than theirs. And their education, training, and ability do happen to be considerably more than those of “the average private sector employee.”  So why do my friends who work for the government do what they do? Because they believe in and love what they’re doing. Some are prosecutors. Some are public defenders. Some work for government regulatory agencies. And they’re great at what they do. They definitely don’t do it for the money.

Does anyone believe that going to work for the government is the way to get rich? God, stupidity is rampant.

Research only begins with information: patience, insight, and imagination are the most important parts of it.

Suffering from one of my occasional bouts with insomnia the other night, I came upon a message on the legal writing professors’ listserv from a professor who was seeking advice from students who were wondering what tricks or tools they might use to find the analogies and legal arguments that they were finding so difficult to discover in the course of their legal research. No doubt the hour contributed to the poor quality of my response. In her poem “4 a.m.,” Wislawa Szymborska writes that “No one feels fine at four a.m.” But the passionate rage I felt at the belief that there are simple tips and tricks to effective research of any sort was not purely the product of the feeling Szymborska describes as “Hollow. Vain./Rock bottom of all the other hours.”

We have a serious misunderstanding these days about what constitutes research.

According to the Oxford English Dictionary, research is the

Systematic investigation or inquiry aimed at contributing to knowledge of a theory, topic, etc., by careful consideration, observation, or study of a subject.

Let’s assume that the inquiry is into a legal topic. The first element of research is a “systematic investigation or inquiry.” I suppose location of a database or the use of a particular search algorithm could be considered one sort of a systematic investigation, but to suppose that the notion of systematic investigation is exhausted by the location of sources is nonsensical. I can point students to particular treatises I personally find of great value in certain subjects, and of course legal research is filled with secondary sources and finding tools that fill virtually any style one might find useful in such sources. And we live in the age of databases — there are databases for everything.

But systematic investigation is barely begun, if even begun at all, by merely finding a source or set of sources in which answers might lie. The real art of research lies in the second part of that definition of the term: “careful consideration, observation, or study.”

The answers to difficult legal questions don’t lie around waiting to be found as if they are treasure chests left lying on forest floors. They are constructed and created by elements buried within our universe of databases. Thus, research that is genuine research not only requires Sisyphean patience in combing through the sources, it requires also consideration, observation, and study of what one finds within those sources so that one can, first, identify the elements that matter, and, second, put those important, buried, and isolated elements together in some useful and novel way.

Perhaps more importantly, the identification of the elements that matter cannot be done without simultaneously developing ways of putting those elements together in some useful and novel way. How can you know what matters without knowing what purpose you are putting it to? And how can you decide what purpose you are trying to accomplish if you don’t know what elements you’ll have to use?

In short, research, analysis, and theorizing are all a single activity — finding things, making sure they are the right things, and putting them together in the right ways.

To suggest otherwise would be to suggest that finding the historical sources concerning the U.S. Civil War that James McPherson used in writing his brilliant history of that conflict was virtually all the work that had to be done to produce the book. After all, once one has found the sources, the writing is just a matter of stringing the information in those sources together, right?

Of course not. One must find the sources, of course. But the research is inseparable from the perspicacious mind that finds within those sources the elements that the creative and original mind then can mold into a work that educates, entertains, moves, and even convinces.

There is no such thing as research apart from insight and imagination. And an enormous amount of work.

And so, in perhaps the most coherent part of my e-mail the other night, I wrote:

Research is about drawing connections between ideas and words from wildly disparate sources, connections that can only be found by means of painstakingly patient reading of one source after another, tracing connections between sources that might be as seemingly trivial as the bare citation in one case to a another case in connection with a discussion in the first case that strikes the attentive and imaginative reader as potentially relevant to the legal issue he or she is researching. Obviously, tracing such connections (and the myriad of similarly subtle connections effective researchers exploit) requires an enormous amount of concentration, and enormous amount of patience with the continual following up of leads that go nowhere, an enormous amount of imagination to spot connections that courts don’t make explicit (and often don’t even recognize the true significance of), and an abandonment of the idea that engaging in research in this manner is to neglect (in some Luddite fashion) “tools” that can do the job so much more quickly and effectively.

Research is painstaking work that requires enormous imagination and is inextricably intertwined with and develops simultaneously with the development of the legal analysis the research is intended to support. (Which is one reason I go ballistic anytime someone suggests librarians rather than legal writing professors should be teaching research to first year law students, as if legal research is simply a matter of knowing sources and databases and how to develop effective word searches rather than being part and parcel of the writing and analysis.)

I’ve always told my students that law is as requires as much creativity and originality as any human endeavor. I mean it.

One last point: I don’t think Google is making us stupid. Yes, there is more information available to us than ever before. But, again, we can’t confuse information with research. Research is inquiry that contributes to knowledge. Information may be a sine qua non of research, but without attention, insight, and imagination, it isn’t research at all.

Does online writing produce better writers? IMHO, it can, but hasn’t yet to any great degree.

In the Chronicle of Higher Education, Josh Keller asks: does the explosion of online writing via social networking sites mean that we’re developing a better generation of writers?

The long and the short of it is that no one knows. Students are writing a lot more, and to audiences about whom they care. On the other hand, Facebook, Twitter, and blogs do not exactly seem to promote the kind of disciplined analysis that most good writing constitutes:

Some scholars say that this new writing is more engaged and more connected to an audience, and that colleges should encourage students to bring lessons from that writing into the classroom. Others argue that tweets and blog posts enforce bad writing habits and have little relevance to the kind of sustained, focused argument that academic work demands.

The debate seems to boil down to whether more writing produces better writing. One researcher states, “People write more now than ever. In order to interact on the Web, you have to write.” But writing, on the one hand, for Facebook and, on the other,  to produce an analytic essay or a legal brief, is writing for entirely different purposes. Sometimes I wonder if the differences are like driving to a Friday night party and driving in the Indy 500 — skill at one does not necessarily translate into skill in the other. As one writing professor quoted in the Chronicle of Higher Education article points out,

[H]e spends more of his time correcting, not integrating, the writing habits that students pick up outside of class. The students in his English courses often turn in papers that are “stylistically impoverished,” and the Internet is partly to blame, he says. Writing for one’s peers online, he says, encourages the kind of quick, unfocused thought that results in a scarcity of coherent sentences and a limited vocabulary.

My own views on the effects of online writing on professional writing are mixed — it hasn’t been the benefit idealists hope for, but it’s an outstanding tool that, properly used, could be a tremendous benefit to producing a new generation of excellent writers.

On the one hand, I have encountered again and again in the past couple of years student efforts at professional writing that are so stylistically inappropriate as to make me cringe. I recently read, for example, an analysis of the jury system that read entirely like a People Magazine article, full of superficial quips and an endless series of references to examples obvious to everyone – the principal point of reference was the O.J. Simpson trial (which, incidentally, I consider an example of atrocious lawyering on the part of the prosecutors, not a failure of the jury system).

On the other hand, the internet is here, and we better get used to it, even if we are training lawyers or political analysts. Students write  a lot on social networking sites. As the article points out, “Students in [one] study ‘almost always’ had more enthusiasm for the writing they were doing outside of class than for their academic work . . . .” Moreover, online writing is “self-directed,” is “often used to connect with peers” and usually is aimed at a “broader audience” than is professional writing. One of the most interesting points to me as a legal writer is that online writing is “also often associated with accomplishing an immediate, concrete goal, such as organizing a group of people or accomplishing a political end . . . .”

These are all characteristics that quite plainly can be used to produce better professional writers even if they have not yet been used effectively to this end. I have struggled to exploit student enthusiasm for online writing. Two years ago, I created a class wiki directed at creating a brief writing check list. I did not consider the effort terribly successful. One year ago, however, I created (as the Chronicle of Higher Education noticed) a class blog to explore issues regarding copyright and fair use in connection with a legal brief the students were assigned to write. While the blog became almost entirely the product of my own work rather than that of my students, it was a huge success in producing better work product. The students were engaged in and argued about the blog, and that engagement and passion produced work that was far more thoughtful and disciplined than anything I could have imagined without the blog.

So does Web 2.0 produce better writers? If you think it does so merely because it makes people write more, no. But it is a tool that, properly employed, sure can help.

Chief Justice John Roberts on legal writing

Bryan Garner is the most commercially successful of legal writing teachers. On his company’s web sites, he has numerous short videos with judges from around the country as well as onger interviews with the Supreme Court Justices. Here is his interview with Chief Justice John Roberts on, among other things, the centrality of writing in legal practice:

Someone must have traduced Maher A. . . .

Scott Finet, in one of the most frequently cited law review articles ever published — Franz Kafka’s The Trial as Symbol in Judicial Opinions — wrote in 1988 of literature in law. Specifically, he discussed the ways judges use references to The Trial, concluding that in writing opinions they used the novel’s depiction of Joseph K.’s encounter with an utterly arbitrary and incomprehensible legal system to illustrate their own system’s rationality and fairness:

This article will show how judges make references to The Trial in published decisions as a symbol of their commitment to the shared value of rational choice. Their references to The Trial seem to be an effort to resolve, on a symbolic level, the contradictions between the ideology of an orderly, rational legal decision making process and the sometimes incongruent workings of that process. This is not to say that the decision making process is or is not always predictable and based on rational choice, but that judicial decision makers, in an effort to legitimize themselves and the process, attempt to convince those affected by their decisions that the process is predictable and based on the shared value of rational choice.

Thus, Finet described one way judges frequently use The Trial – to discuss someone who is faced with the need to find the reason for his predicament. For example, a criminal defendant might be seeking the reasons for his prosecution, something Joseph K. was never able to discover:

In the cases that refer to The Trial one often encounters the supplicant who seeks information and resolution to his or her quest just as Joseph K. did in The Trial. The role of the information seeker can be played by the plaintiff or the defendant. Judges cite The Trial to demonstrate that they, unlike the illegitimate court in The Trial, are committed to the shared value of rational choice and that they will provide a resolution to the supplicant’s search.

Finet article is now over 20 years old.  I wonder what he’d make of the predicament faced by Guantanamo detainees, some of whom, we’re told, are too dangerous to release but can never be prosecuted because no U.S. court will allow the admission of evidence obtained by torture.   Even more to the point, perhaps, is the case of Canadian Maher Arar, arrested by U.S. officials on a stopover in New York, sent (via “rendition”) to Syria, and tortured there for a year before it was realized he was an innocent Canadian. And last year a U.S. court established that Mr. Arar could not sue in U.S. courts to establish that U.S. officials “acted illegally by removing him to Syria so that Syrian authorities could interrogate him under torture.” The Trial is not so much a contrast here; Mr. Arar found himself in New York’s Kennedy airport in a situation much like Joseph K. did at the very beginning of Kafka’s novel:

Someone must have traduced Joseph K., for without having done anything wrong he was arrested one fine morning.

McElhaney on being a good writer and speaker: let the story pick the words. Glass: and then explain the point.

How do you do what I’ve been writing about — making your thinking clear by avoiding empty phrases that don’t address the really dire questions you face?  My former Case Western Reserve colleague Jim McElhaney, who’s literally written the book on Trial Practice, has excellent advice in a column entitled “Stop Sounding Like a Lawyer“: “The first step in becoming a good writer and speaker is to concentrate on the story. Let the story-not the legal theory-pick the words.”

McElhaney does a good job in the article of telling a story and conveying its significance.  Ira Glass (a college classmate –  I have crossed paths throughout my life with remarkably talented and accomplished people without many of those traits rubbing off on me) explains that both a compelling story and reflection upon the story’s significance are necessary to capture an audience’s attention:

Language abuse is posing an existential threat to those around me.

Perhaps it’s being reminded recently to re-read “Politics and the English Language.”  Perhaps it’s journalism’s daily abuse of our language.  Perhaps it’s the despair peculiar to mid-November of the first semester of law school, when students have realized they have learned a lot and, understandably, given the enormous effort they’ve made over the last three months to accomplish that learning, let up, forgetting what I’ve been telling them for those three months: it will be many, many years before they feel in their guts they’re really good at expressing themselves as lawyers and understanding other lawyers.  Perhaps it’s the letter a friend received from her mortgage lender making a sincere and pathetic effort to explain to a human being what it could do for her under the federal government’s recent “baiiout” plan.  Perhaps it’s reading of Malcolm Gladwell’s most recent best-selling insight — it takes 10,000 hours of practice for anyone to become really good at anything — and realizing that maybe it takes 10,000 hours of practice to become a really good legal writer.  Perhaps it’s realizing again, for the thousandth time, that lawyers really do often use their skill with language to obscure and deceive.

At any rate, I am suffering from the cynicism Orwell in that essay mentioned in the first sentence above argues against:

Most people who bother with the matter at all would admit that the English language is in a bad way, but it is generally assumed that we cannot by conscious action do anything about it. Our civilization is decadent and our language — so the argument runs — must inevitably share in the general collapse. It follows that any struggle against the abuse of language is a sentimental archaism, like preferring candles to electric light or hansom cabs to aeroplanes. Underneath this lies the half-conscious belief that language is a natural growth and not an instrument which we shape for our own purposes.

Can we at least agree on one thing?  Can we stop using the term “existential threat” to refer to a threat that poses a genuine risk of destroying someone or something’s very existence?  As in:

Iran poses an existential threat to Israel.

The Soviet Union during the Cold War posed an existential threat to the United States.

Islamofascism poses an existential threat to Western democratic capitalism.

The term “existential threat” hides the real question — how much of a threat? — behind the idea that if something poses a threat to one’s very existence it is as bad as a threat gets.

Maybe it’s just that I started writing this post at 4am, which I’ve heard is “the new midnight.”

I confess: I’m complicit in a corrupt and dishonest system.

I’m sometimes asked why the law can’t speak clearly to the average person.  I wish I had a good answer.  I’m not without answers; they’re simply not very satisfying.  My first answer is that the question why law can’t speak more clearly is like asking why pigs can’t fly.  They don’t, and it doesn’t.  I’ve given up trying to figure out why.  I’m primarily concerned these days with trying to figure out how to teach people who will practice law how they can begin to understand legal language.  I know that task itself — achieving a glimmer of understanding of legal language — takes a monumental amount of work even when attempted by incredibly well educated and bright people.

My second answer is that making oneself understood is incredibly difficult for anyone.  The President of the United States, the Governor of Alaska, and many other very powerful and accomplished people seem incapable of the art.  Why would you expect some low level lawyer at a federal agency to be clear if these people can’t be?

In the end, though, I sometimes throw up my hands in utter frustration, realizing I myself remain befuddled or, even worse, that they system is intended to be as confusing as possible.  I’ve “known” since law school (25 years ago) the purpose of the patent system is to encourage the disclosure of ideas by inventors to increase the inventiveness of others.  We offer an inventor exclusive rights to profit from his invention in exchange for his disclosure of the invention because doing so will at least allow other inventors to learn the patented knowledge and build upon it.

Now Techdirt makes clear that I’m an idiot: “Defenders of the patent system quite frequently point out that one of the main benefits (some claim the only benefit) of the patent system is ‘disclosure.’ That is, because the patent system requires you to disclose your patent, the patent system is quite helpful in spreading ideas. This is a myth that’s easily debunked on a few points.”  First, you’ll bother applying for a patent for your invention only if you know the invention will be figured out anyway.  Otherwise, why bother?  Second, since the penalties for knowingly infringing a patent are so much worse than accidentally infringing, companies actually discourage their employees from examining patents.  The companies are better off if there’s no proof they actually knew about any patents they infringe.  Finally, “Slashdot points us to a Microsoft employee admitting that looking at patents is a total waste because they never actually disclose anything useful:

When using existing libraries, services, tools, and methods from outside Microsoft, we must be respectful of licenses, copyrights, and patents. Generally, you want to carefully research licenses and copyrights (your contact in Legal and Corporate Affairs can help), and never search, view, or speculate about patents. I was confused by this guidance till I wrote and reviewed one of my own patents. The legal claims section — the only section that counts — was indecipherable by anyone but a patent attorney. Ignorance is bliss and strongly recommended when it comes to patents.

Anatomy of a Murder, or How to Coach a Witness

In the Michigan Bar Journal, Frederick Baker, Jr. writes “Reflections on the 50th Anniversary of Anatomy of a Murder (pdf),” noting the movie‘s realism and its creation of the law thriller as a whole new literary genre:

[C]onsider “the lecture,” in which Polly [the defense attorney hero] tells his client the law so that Mannion [the defendant in a murder trial] could tell him the facts that might sustain an insanity defense. It is such a deft example of how a lawyer can walk the fine ethical line between coaching a client and counseling the client on what testimony might offer salvation that it is included in Ladd and Carlson’s evidence text, which is where I first encountered Anatomy of a Murder, while studying evidence with Ronald Carlson.

John [Voelker] literally created a new fictional genre with Anatomy. Before then, no novel had so truly depicted the actual preparation and trial of a case. The Grishams and Turows who followed all owe a debt to John, who wrote a novel that was both true to life and true to himself.

As Michael Asimow writes, both the novel and the film version (which he describes as (probably the finest pure trial movie ever made) are filled with legal and ethical issues that resonate to this day:

In his famous “lecture,” Biegler [the defense attorney in the movie] skates close to the line of unethical witness coaching—that is, knowingly altering a witness’ story about the events in question. When Biegler first meets Manion [his client] in jail, he manages to overcome the client’s intense mistrust and then the discussion turns to whether the client has a defense. How far can counsel go in suggesting a defense to a client who hasn’t a clue? And should the lawyer discuss possible defenses before asking the client what happened? Because once the client has told the attorney his story, that freezes the client’s version of the facts; it’s too late to mold the facts to fit a particular defense.

Clearly it is improper to assist the client to make up facts that never occurred. . . . But it’s perfectly OK (indeed obligatory) for counsel to interview a witness and to discuss his testimony in order to assist the witness to testify effectively. And surely it is appropriate to tell a client what the law is, even if that suggests a defense to the client that he might not have realized was available. The problem is that a clever attorney can convey an implicit message to a witness that alters the witness’ testimony—without ever coming out and actually telling the witness to do it.

In the film, Biegler is obviously quite aware of the limits on witness coaching but most observers think he stayed on the ethical side of the line. Without first asking Manion exactly what happened, he tells Manion about the categories of justification and excuse and rules out each possible claim. For example, killing in the defense of another is a possible justification—but not an hour after the purported rape occurred. Biegler also nixes the “unwritten law” which allows you to kill someone whom you discover in flagrante with your spouse. Not recognized as a defense in Michigan, unfortunately.

So Biegler keeps Manion guessing until Manion says “I must have been mad.” Sorry, bad temper isn’t a defense. “No,” says Manion, “I must have been crazy. ” “Well, Lieutenant,” replies Biegler, as he steps from the room, “in the meantime, see if you can remember how crazy you were.” So the client comes up with the defense, albeit with a bit of gentle prodding from the attorney, and either remembers or fabricates the facts to support that defense. We’ve screened this scene before quite a few audiences, and hardly any attorneys have ever voted to discipline Biegler, even though it seems quite likely that Manion’s testimony is different than it would have been in the absence of the lecture and that Biegler intended exactly that.

In the book however, Biegler goes a step further. The suggestion for the insanity defense comes from Biegler, not from Manion. Speaking in the first person, Biegler recounts his conversation with his client: ” ‘Then, finally there’s the defense of insanity.’ I paused, and spoke abruptly, airily: ‘Well, that just about winds it up.’ ” Then Manion starts asking questions about insanity. Biegler plays dumb and answers the questions, but tells the reader: “My naivete was somewhat excessive; it had been obvious to me from merely reading the newspaper the night before that insanity was the best, if not the only, legal defense the man had. And here I’d just slammed shut every other escape hatch and told him this was the last. Only a cretin could have missed it, and I was rapidly learning that Lieutenant Manion was no cretin.” (Pp. 45-46)

It can be argued that, in the book’s version, Biegler overstepped the line by coaching his client right into a made-up defense. . . . The movie, however, is more subtle. The client comes up with the defense, but obviously with a lot of covert help from his lawyer.

Ruling Imagination: Law and Creativity

Collaborative Writing and Creativity

Legal writing is collaborative and built on appropriations from earlier legal writing. Does that mean it is not original? Take for example a judicial opinion written by a high appellate court. The judicial opinion is not the original work of the wise and creative judge pronouncing from on high. Rather, the opinion itself is a piece cobbled together from a number of other sources that include the lawyers’ written and spoken legal arguments to the court, the opinions rendered by the lower courts (which themselves appropriated the legal arguments made by lawyers to them), secondary legal sources, and earlier opinions that were themselves built up from the bits and pieces floating through the legal discourse community. Nevertheless, conventional legal thinking has since at least the 19th Century propounded the notion of the judge as quintessentially Romantic author-creator.

Increasingly it is being recognized that all writing is to some degree collaborative

In short, legal writing is quintessentially collaborative and full of unattributed appropriations of texts, ideas, and forms. My work in this blog will be in part, I think, two-fold: (1) to convince you that such writing is, despite its mongrel nature, fully original, and (2) to convince you that what you consider the most original writing is, in fact, far more collaborative and appropriative than you have previously considered.

In short, I hope to examine what creativity really is and to convince you it is not typically, if ever, the inspired product of an isolated genius.