Modeling: Placing Persuasion in Context

Western New England University School of LawDigital Commons Western New England University School ofLaw

Faculty Scholarship Faculty Publications

Modeling Placing Persuasion in ContextMyra G OrlenWestern New England University School of Law morlenlawwneedu

Follow this and additional works at httpdigitalcommonslawwneedufacscholPart of the Legal Writing and Research Commons

This Article is brought to you for free and open access by the Faculty Publications at Digital Commons Western New England University School ofLaw It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Digital Commons Western New England UniversitySchool of Law For more information please contact pnewcombelawwneedu

Recommended CitationThe Second Draft (The Legal Writing Institute) Dec 2001 at 7

24 THE SECOND DRAFT

To help us keep our mailing list current please keep us informed of changes in your address or in theaddresses of your colleagues You can complete this coupon with any updates to your contact informa-tion and mail it to Professor Suzanne E Rowe 1221 University of Oregon School of Law Eugene OR97403-1221 or you can send an e-mail to lwiaddresseslawfsuedu and your information will automati-cally be forwarded to the Second Draft editors and the LWI Program Assistant Lori Lamb

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Street Address

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PhoneFaxE-mail

The Second Draft Bulletin of the Legal Writing InstituteFromThe Florida State University College of LawTallahassee Florida 32306-1601

Non ProfitUS Postage

PAIDTallahassee FLPermit No 55

THE SECOND DRAFT 1

LEGAL WRITING INSTITUTE

SECOND DRAFT Bulletin of the Legal Writing Institute

Volume 16 No 1 December 2001

Teaching Students to Persuade Used Cars and Recycled Memos Brian J Foley (Widener University School of Law)

Persuasion is getting someone to do what you want him or her to do There are lots of ways to persuade You can force someone at gun-point You can use your position of authority and bark orders You can pay someone to do something or otherwise bargain If you are an infant you can cry Or you can show the person that her doing what you want her to do will in fact meet her needs1

The last option is the only one relevant to law students learning how to convince judges Lawyers canrsquot point guns at judges canrsquot pull rank on judges canrsquot pay judges or

otherwise bargain for a favorable decision (read bribe) Crying is legal but rarely works

Given this understanding I introduce my first-year legal writing students and upper-level advanced brief writing class to persuasion with three baseline principles persuasion is something we all do all the time anyway persuading a judge is merely a highly stylized form of this activity and persuasion is the heart and soul the fun part of lawyering The following exercises are an effective way to convey these principles

EXERCISE 1 The Used Car Lot Have your students envision

themselves walking onto a used car lot

Itrsquos hot and sun glints off the chrome and glass Immediately a salesman struts toward a car and promises ldquoI stand behind this car itrsquos great and it has new tiresrdquo Ask your students if they will buy the car Theyrsquoll probably say no Ask them to think why for a moment

Then move on to present another scenario with students envisioning themselves walking into a pleasant climate-controlled showroom This time the salesman shows no carsmdashat least not right away Instead he sits the customer down in his office and asks her what shersquos looking for Her needs and concerns emerge Here

CONTINUED ON PAGE 4

Creating Facts Bonnie M Baker (NYU School of Law)

I find that students enter law school with an intuitive understanding that the craft of the lawyer in role as an advocate is to persuade They understand the advocacy function as one of urging a particular view of the law or the facts on a neutral third party What uniformly comes as a shock to virtually all of my students is that the very creation of fact is inextricably linked to advocacy and persuasion

Law students find this an uncomfortable controversial proposition because they are accustomed to taking the existence of objective fact for granted The standard fare for first-year law students consists of a steady diet of appellate decisions where the facts in the record

seem dropped like manna from heaven into the laps of the judges Students are encouraged to give little if any thought to the genesis of fact

In my Lawyering course1 I suggest a pyramid-like nature of the factual universe at the peak of the pyramid lies the narrow slice of fact that is recited in the appellate opinion This slice is culled from the appellate record which in turn is drawn from the pool of facts that constituted the evidence at trial in the court below The facts found at trial come from an even broader source of ldquofactrdquo the discovery process which yields facts that are relevant and not helpful and damaging At the wide base of the pyramid facts are born often the product of interactions between attorney and witness Thus it is here that persuasion finds its roots

To introduce students to the concept CONTINUED ON PAGE 5

In This Issue Essays Teaching Students to Persuade 1 4-14 The Presidentrsquos Column 2 Professor Karon Bowdre Confirmed as US District Judge 14 Tips for New Teachers 15 From the Desk of the Writing Specialist 16 ALWD Manual International and Foreign Law Edition to be Published by Aspen 17 News Conferences and Meetings 18 Reflections and Visions LWI Biennial Conference 22 Calendar 23

THE SECOND DRAFT 23

Board of Directors Elections

CALENDAR

AALS Annual Meeting Saturday January 5 2002 700 am2002 LWI Conference Wednesday May 29 2002

LWI Board Meetings

Deadline for submissions for Spring 2002 issue March 15 2002Deadline for submissions for Fall 2002 issue (LWI committee reports) October 15 2002

The Second Draft

Status of Volume 8 Anticipated publication Spring 2002Status of Volume 9 Currently soliciting articles

Legal Writing The Journal of the Legal Writing Institute

2002 LWI Conference

2002 LWI Conference University of Tennessee College of Law Knoxville TNWednesday May 29 through Saturday June 1 2002

Call for Nominations January 2002Elections March 2002

We welcome unsolicited contributions to The Second Draft Our goals include providing a forum for sharing ideas and providing informationthat will be helpful to both experienced and novice instructors Each newsletter will have a ldquothemerdquo with the exception of newsletters thatfollow the LWI biennial conferences but the content of the newsletter will not be limited to a particular theme

Content of submissions We encourage authors to review recent issues of The Second Draft to determine whether potential submissionsare consistent with the type of contribution expected and with the format and style used Submissions should be written expressly for TheSecond Draft but we will consider submissions which explore an aspect of a work in progress that eventually will be published elsewhereThe ideal length for submissions for a ldquothemerdquo issue is approximately 500 words Longer articles will be considered if their content isparticularly newsworthy or informative

Deadlines Material can be submitted to the editors at any time Submissions received after a deadline for one issue will be consideredfor a later issue with the exception of submissions written to respond to a particular ldquothemerdquo For the next issue the deadline for submis-sions will be March 15 2002

Form of submissions We encourage electronic submission Submissions can be attached to an e-mail and sent to either BarbaraBusharis at bbusharilawfsuedu or Sandy Patrick at patricklclarkedu You may also send a diskette to Barbara Busharis FSU College ofLaw 425 W Jefferson St Tallahassee FL 32306-1601 or to Sandy Patrick Northwestern School of Law at Lewis amp Clark College 10015 SWTerwilliger Blvd Portland OR 97219-7799 If electronic submission is not possible please mail a copy of the submission to both editors usingthe addresses given above Documents in WordPerfect are preferred for other acceptable formats contact the editors Include your namefull mailing address phone number(s) and any other contact information

Review and publication Submissions are reviewed by the editors One of the editors will notify the author of the articlersquos acceptancerejection or a conditional acceptance pending revision The initial review process will generally take approximately two weeks Articles thatrequire extensive editing will be returned to their authors with suggestions and their publication may be delayed If an article is accepted itmay be further edited for length clarity or consistency of style

GUIDELINES FOR CONTRIBUTORS

regregregregreg regregregregreg regregregregreg

From the Editors

The essays in this issue are timed for those programs that teach persuasive writing in the spring semester of the first year If your program teaches persuasion in the fall or if you teach an advanced advocacy course we think you will still find inspiration heremdash but you may have more time to consider ways to incorporate these great ideas into your teaching

We were overwhelmed with the number of items in the ldquoNewsrdquo section Thank you for sharing your accomplishments with us Special congratulations go to The Honorable Karon Bowdre formerly Professor and Director of Legal Writing at Samford who has been confirmed as a federal district judge

With this issue we welcome Sandy Patrick as an editor of The Second Draft She has recently moved from Wake Forest to Lewis amp Clark We are especially excited about Sandyrsquos background in journalism

We also appreciate the continued assistance of Donna Williamson (Oregon) and the staff of Florida State University Printing and Mailing Services

In the next issue essays will explore the many possibilities of a third semester of required legal writing We are particularly interested in the experiences of those of you teaching in programs that already have at least three semesters of legal writing What is the content of each required course What more have you been able to cover with the extra semester What have been the benefits of a three-semester curriculum What is the ideal way to use the third required semester We look forward to hearing from you The next deadline for submissions will be March 15 2002

Finally as the year draws to a close we want to express our continued concern and support for all our colleagues and friends who have been directly affected by the attacks on New York and Washington

Barbara J Busharis (Florida State) Suzanne E Rowe (Oregon)

Sandy Patrick (Lewis amp Clark)

Reminder Appl icat ions for ALWD research grants for the summer of 2002 in the amount of $5000 per grant are due by January 31 2002 For an application form and guidel ines contact ALWD President Nancy Schultz (Chapman) at nschultzchapmanedu

The Presidentrsquos Column Jane Kent Gionfriddo (Boston College Law School)

In this issue I am going to take the opportunity to highlight important developments activities and resources of the Institute

LWI Website Be sure that you check out the new LWI Website at

wwwlwionlineorg This site has many wonderful resources These include information about LWI (officers Board members committee lists) information about the 2002 LWI conference at the University of Tennessee information about our journal information about The Second Draft as well as downloadable issues bibliographies from the 2000 conference presentations and many other interesting features

THE LEGAL WRITING

INSTITUTE

The Legal Writing Institute is a non-profit corporation founded in 1984 The purpose of the Institute is to promote the exchange of information and ideas about legal writing and to provide a forum for research and scholarship about legal writing and legal analysis

President Jane Kent Gionfriddo (Boston College) President-Elect Steven Johansen (Lewis amp Clark) Secretary Deborah Parker (Wake Forest) Treasurer Davalene Cooper (New England)

Board Members Coleen Barger (Arkansas-Little Rock) Mary Beth Beazley (Ohio State) E Joan Blum (Boston College) Maureen Straub Kordesh (John Marshall) Jan Levine (Temple) Susan McClellan (Seattle) Kathryn Mercer (Case Western Reserve) Laurel Currie Oates (Seattle) Terry Seligmann (Arkansas-Fayetteville) Helene Shapo (Northwestern) Louis Sirico (Villanova)

The Second Draft is published twice yearly and is a forum for sharing ideas and news among members of the Institute For information about contributing to The Second Draft contact one of the editors Barbara Busharis (Florida State) bbusharilawfsuedu Sandy Patrick (Lewis amp Clark) patricklclarkedu Suzanne Rowe (Oregon) srowelawuoregonedu

THE SECOND DRAFT 2

22 THE SECOND DRAFT

2002 Plenary SpeakerProfessor Terri LeClercq

Terri LeClercq has taught at theUniversity of Texas School of Lawsince 1982 Her courses includeadvanced legal writing editing foreditors thesis writing for LLM legalresearch and writing negotiations anddrafting and real estate transactionsand drafting

Professor LeClercq has publishedthree books over sixty ar ticlespoems short stories andphotographs She has extensiveexperience as a writing consultant tolaw firms courts bar associationsand organizations nationwide Shedirects the law schoolrsquos writing centerand is the director of internationalprograms During summers she isthe law school liaison to numerouspre-law programs In her spare timeshe and her husband Jack Getmantravel extensively to advance laborand human rights issues

In 1994 Professor LeClercqchallenged members of the LegalWrit ing Institute to re-inventthemselves as diamonds the sparkleof the law curriculum This yearrsquosplenary session is sure to include newinspiration and challenges

Reflections and VisionsThe Past Present and Future of Legal Writing

The tenth biennial conference of the Legal Writing Institute will be held May 29-June1 2002 at the University of Tennessee College of Law in Knoxville Tennessee

The conference will celebrate the successes our community has achieved withinthe academy and examine the challenges that lie ahead The plenary speaker is ProfessorTerri LeClercq of Texas (See sidebar this page)

Over 60 conference presentations will explore curricular design the intersectionof legal theory and legal writing advances in technology scholarship works in progressand much more Other highlights include

Scholarship Roundtables Basics TrackmdashIncludes the Workshop on Critiquing Student Papers Technology TrackmdashIncludes the technology workshop Opening Windows

Registration for the conference is $350 through April 30 This includes entranceto all meetings breakfast lunch and dinner on Thursday and breakfast and lunch onFriday and Saturday Three exciting social events are also included in the registrationfee a reception at the Knoxville Museum of Art dinner for conference participantsand their families at the Knoxville Zoological Gardens and a Riverside Reception asthe conference finale Housing is available in nearby hotels or dormitories

Conference brochures will be mailed soon Please send in your registration as soonas possible All who register will receive information in the spring about participating inthe Idea Bank to be coordinated by Sophie Sparrow (Franklin Pierce) and Ruth AnneRobbins (Rutgers-Camden) Presenters will receive additional information from theProgram Committee and the Bibliography Committee several months before theconference

If you have questions please contact one of the Conference Co-Chairs Dan Barnettdanielbarnettbcedu or Suzanne Rowe srowelawuoregonedu Please directquestions about the site to the Site Chair Carol Parker at parkerlibralawutkedu

For additional information please visit the LWIwebsite at wwwlwionlineorg

I want to give a very sincere thanks to Jo Anne Durako (Rutgers-Camden) for the immense amount of time and effort she committed last year as Chair of the Website Committee to ensure that the website became a reality Many other people helped but special thanks should also go to Dean Rudy Hasl of Seattle for his commitment of resources to support our web site Bill Galloway (Seattle) for taking on the position of webmaster Laurel Oates (Seattle) for many hours of behind-the-scenes work Rick Peltz (Arkansas-Little Rock) for all his efforts in collecting the bibliographies from the 2000 LWI conference and designing the bibliographies page and Joan Blum (Boston College) who spent so much time obtaining issues of The Second Draft in pdf form and creating an index (Because The Second Draft issues are in ldquopdf rdquo form you can view download and print them so that they look exactly like the paper copies you received in the mail)

For this next year Joan and Rick have undertaken to be Co-Chairs of the Website Committee so look for future improvements and innovations If you have any ideas about the web site donrsquot hesitate to contact them at blumbcedu or peltzflashnet

The Second Draft I want to compliment the editors of The Second Draft for the

past year Barbara Busharis (Florida State) and Suzanne Rowe (Oregon) I love our newsletterrsquos new look (thank you Barbara for your technological genius) and content and Irsquom sure there will be new surprises in store for all of us in future issues We will have a new editor on board this year Sandy Patrick (Lewis amp Clark formerly Wake Forest) who comes with a background in journalism She joins Barbara and Suzanne for this fallrsquos issue and will replace Suzanne next spring as Suzanne turns her attention to her many other national activities in our legal writing discipline Thank you Suzanne for your contribution to The Second Draft If yoursquod like information about contributing to The Second Draft see the LWI website at wwwlwionlineorg

2002 LWI Conference Look for the brochure for the 2002 LWI Conference late

this fall T his next conference takes place at the University of Tennessee College of Law in Knoxville Tennessee May 29 through June 1 2002 and the program committee co-chaired by Dan Barnett (Boston College) and Suzanne Rowe has prepared I hear a very interesting program Carol Parker (Tennessee) and the rest of the Site Committee have been busy with all the behind-the-scenes preparations including some great entertainment Watch the LWI website for updates on the conference

Golden Pen Award at the AALS Annual Meeting in New Orleans

For those of you coming to the AALS Annual Meeting in New Orleans donrsquot miss the Golden Pen Award ceremony and reception on Thursday January 3 2002 at 630 pm in the Grand Salon of the Hilton New Orleans Riverside LWI will be giving its second Golden Pen Award to Dean Don LeDuc of Thomas M Cooley Law School in recognition of his long-standing commitment to legal writing Dean LeDuc has been a vocal advocate for the importance of legal

writing in the law school curriculum and in the legal profession He recognized early on that a law schoolrsquos legal writing faculty deserve status commensurate with the rest of the schoolrsquos faculty More important he made this vision a realitymdashfor the past fifteen years all legal writing faculty members at Cooley have held tenure-track positions Look for fur ther announcements of this important event on the legwri and dircon listservs and on the LWI website

LWI Board of Directors Election Donrsquot forget that there will be an election this spring for seven

positions on the LWI Board of Directors This is a wonderful opportunity to run for a position that will really make a difference to the future of the Institute In December 2001 or early January 2002 Steve Johansen (Lewis amp Clark) President-Elect and Chair of the Elections Committee will be sending out on the legwri and dircon listservs and placing on the LWI website more specific instructions on how to nominate yourself or others for these positions

The Journal Diana Pratt (Wayne State) has made an enormous

contribution over the years to LWIrsquos journal Legal Writing In recognition of her contribution the LWI Board at its July 2001 meeting changed Dianarsquos appointment from Acting Editor-in-Chief to Editor-in-Chief through Volume 9 Cong ratulations Diana

As to the current status of the journal issues Volume 7 the proceedings issue from the 2000 LWI Conference will be out late this fall and Volume 8 is scheduled to be completed late in Spring 2002 The Editorial Board of the Journal is currently soliciting articles for Volume 9 See the LWI website for information on submitting articles to the journal

In the near future look for issues of our journal to be included in the on-line databases of Westlaw and Lexis

ALWDLWI Survey Donrsquot forget to check out the Survey results on line the results

from the 1999 2000 and 2001 Surveys are available to be downloaded This important survey is sponsored by the Legal Writing Institute and the Association of Legal Writing Directors and provides excellent data on program configurations as well as status and salary issues in our profession Either go to the new LWI website (again wwwlwionlineorg) and follow the ldquosurvey resultsrdquo link (see the left hand menu bar) or go directly to the ALWD website at wwwalwdorg

If you have any suggestions for the Survey contact the Co-Chairs of the Survey Committee Jo Anne Durako (Rutgers-Camden) at durakocamdenrutgersedu and Kristin Gerdy (Brigham Young) at gerdyklawgatebyuedu

In addition to all the people mentioned above I want to thank all my hardworking colleagues in the Institute I did not name specifically but who are making valuable contributions as members and Chairs of committees as Board members or officers as presenters and attendees at our conferences as editors on the journal or other Institute publications or in a multitude of other ways As Hillar y Clinton would say it takes a village to run the Institute

THE SECOND DRAFT 3

THE SECOND DRAFT 21

also be teaching Civil Procedure and Robert Wood(recently from private practice) who will also be headingup the schoolrsquos ASP program

Claire C Robinson May (Cleveland-Marshall) has beenhired as a Lecturer in Legal Writing

The University of Oregon welcomes Joan Malmudand Kate Weatherly to its Legal Research and Writingfaculty They practiced with Paul Weiss Rifkind Whartonamp Garrison in New York and the Native AmericanRights Fund in Boulder respectively before comingto Oregon

Program NewsAfter two years of discussion the faculty of TheDickinson School of Law of Pennsylvania StateUniversity voted to extend limited voting privileges toLawyering Skills Professors who will be able to voteon all issues except personnel decisions mattersaffecting promotion and tenure or amendments to theby-laws

Southern Illinois University School of Law has givenbroader votes to clinical faculty (including legal writingfaculty) and librarians who will now be able to vote onmost matters other than hiring promotion and tenureof tenure-track faculty

Conferences andMeetingsBoston College Law School will hold the New EnglandLegal Writing Consortium on Friday December 142001 At the meetings of the New England Legal WritingConsortium in March and June 2001 the participantsagreed that it would be worthwhile to devote the December2001 conference to ldquodeconstructing IRACrdquo To learn moreabout how programs conceptualize and teach theconstruction of an objective memo each participatingprogram has been asked to prepare an objective memobased on common authority and facts taken from a closedassignment used for first-year students (More than oneperson within a program could prepare a memo or twosmall programs could collaborate on one memo) Thememos will be shared at the conference and the participantswill discuss their different approaches to the memoproblem while discussing the effectiveness of each Theconference will be held at Boston College Law School885 Centre Street Newton Centre MA on FridayDecember 14 from 1000-330 For information contactJudy Tracy at tracyjubcedu or at 617-552-3078

Several events of interest to LWI members will takeplace during the AALS Annual Meeting in NewOrleans Thursday January 3 through Saturday January5 2002 (for more information see page 2) The Golden PenAward ceremony is scheduled for 630 pm on ThursdayJanuary 3 A legal writing reception will be held at theColumns Hotel in the Garden District on SaturdayJanuary 5 from 4 to 6 pm The AALS Section on LegalWriting Reasoning and Research will elect a Secretaryto begin serving in January 2002 The NominatingCommittee is the Section Executive Committee ChairSteve Johansen (Lewis amp Clark) Immediate Past ChairKate OrsquoNeill (Washington) Chair-Elect Joan Blum(Boston College) and Section Secretary Dan Barnett(Boston College) The person who serves as Secretaryagrees to publish two Section newsletters attend theannual Section Executive Committee meeting heldduring the Annual Meeting assist the Chair and Chair-Elect in carrying out Section activities and serve on theSection Executive Committee for three terms of officebeyond the term of Secretary first serving as Chair-Elect then as Chair and finally as Immediate Past ChairNominations closed in November The Committee willreview each candidatersquos resumeacute and personal letterwhich will serve as the basis for the Committeersquosnomination at the Sectionrsquos annual business meeting Forfurther information contact Professor Dan BarnettBoston College Law School 885 Centre Street NewtonMA 02459 617-552-2615 danielbarnettbcedu

The Second Annual Rocky Mountain RegionalLegal Writing Conference will be held on March 1 amp2 2002 at Arizona State University College of Law inTempe The Program Committee invites participants tosubmit proposals for the conference presentations onany subject pertaining to legal research and writingPresenters may suggest ideas for as many as twelve 20-minute slots for short practical presentations onteaching methods or assignments that have beenespecially successful or presenters may suggest ideasfor one 50-60 minute time slot Those wishing topropose a presentation should e-mail a brief descriptionof the presentation as well as your name address phonenumber fax and e-mail information to Terrill Pollmanat pollmanccmailnevadaedu You may also submit aproposal to Professor Pollman by mail Boyd School ofLaw UNLV 4505 Maryland Parkway Box 1003 LasVegas NV 89154-1003 or fax 702-895-2482 For moreinformation call 702-895-2407 The deadline forproposals is January 15 2002

The 2002 LWI Conference at the University ofTennessee College of Law Knoxville Tennessee startson Wednesday May 29 2002 (for more information on theconference see pages 2 and 22)

Used Cars (continued from page 1)

ask your students what they need in a vehicle and write these needs on the blackboard Theyrsquoll probably come up with transportation reliability number of people it seats safety price range suitability for a particular function (SUV v sports car) gas mileage prestige factor insurance costs color If the salesman can think of a car that meets these needs and concerns and then takes the customer to that particular car the odds of a sale are much higher now The salesman will need to do less ldquoconvincingrdquo less huffing and puffing This will be clear to your students

Now bridge from cars to cases Does a lawyer get very far by ldquostanding behindrdquo the argument and huffing and puffing like our car salesman The huffing and puffing will succeed only if it carries out the lawyerrsquos main task meeting the judgersquos needs The judge is looking for guidance in making a difficult YesNo decisionmdash ldquoMayberdquo is not an option The judge wants to be assured that the decision will conform to binding law that it will carry out the principles inherent in that area of law that it will be fair that it will evince common sense that it will effect good social policy A lawyerrsquos argument or brief should meet all these needsmdashthe more of these needs it meets the higher the odds the judge will buy it2

EXERCISE 2 The Job Search This exercise will help your students

keep their newly-minted grades in perspectivemdashand make them feel better about themselves

Have your students transport themselves into the near future when they are applying for their dream job An associate at a large law firm Prosecutor or public defender An in-house job Judicial law clerk Public interest advocate Ask the students to write down attributes they can bring to this dream job now or after their law school training Then ask your class to write down what they perceive to be the needs of this future employer After that ask studentsmdashgiven these needsmdashto think of more attributes they have or will have when they apply

After a few minutes debrief When I ran the exercise I asked students whether

their being forced to think about the employerrsquos needs had led students to think of additional attributes that they had not thought of earlier or to stress particular attributes Many students nodded Yes

This exercise has benefits beyond teaching persuasion It helps students think about their goals and lends perspective when grades are being posted Indeed many of the attributes listed had nothing to do with grades For example students listed ldquohard workingrdquo ldquodiligentrdquo ldquoexperience in salesrdquo ldquostrong writerrdquo ldquoexperience in legislaturerdquo and ldquogood people skillsrdquo attributes that arguably have more impact on success in law practice than do good grades

EXERCISE 3 Recycle a Memo Assignment

Herersquos a way to use your open or closed memo assignment from first semester to introduce students to ldquotheory of the caserdquo argumentsmdashsomething most law professors would agree is very hard to teach Herersquos how I used mine

My closed memo problem dealt with a high school student charged with criminal threatening The young woman Marcia had written a poem about her ex-boyfriend on the bathroom wall3 I asked my students to represent Marcia and to brainstorm arguments they might make to a jury ldquotheory of the caserdquo types of arguments a lawyer might make to a jury in an opening statement After a few minutes I asked them to brainstorm arguments they might bring to the prosecutor a week before the trial to get the prosecutor to drop the charges

Then without debriefing I asked them to take the other side to put themselves in the shoes of the prosecutor and come up with ldquotheory of the caserdquo arguments to persuade a jury and then to brainstorm arguments a prosecutor would make at a pre-trial meeting with Marcia and her lawyer to persuade her to plead guilty I gave the class a few minutes to write down these arguments

Debriefing showed that the students recognized that arguments must be fashioned according to the needs of the particular audience As Marciarsquos counsel students argued to the jury that it should not destroy Marciarsquos bright future by convicting her for merely writing a poem

and expressing her feelingsmdashboth inherently good activities In their efforts to persuade the prosecutor to drop the charges the students argued that by going to trial the prosecutor risked appearing to blow a high school breakup out of all proportionmdashand could be perceived as bullying a heartbroken teen

Wearing the hat of the prosecutor students argued that school crime must be cleaned up They also argued that even colorable threats must be taken seriously so as to avoid Columbine Colorado types of tragedies The students-as-prosecutorsrsquo arguments were different vis a vis persuading Marcia to plead guilty Students considered Marciarsquos needs getting into college and avoiding a criminal record My students thought of ldquoincentivesrdquo such as letting her plead guilty to a lesser charge or to be sentenced to community service

Wonderfully students arrived at these arguments on their ownmdashI didnrsquot tell them beforehand what prosecutorsrsquo or juriesrsquo needs are In one class period they internalized the idea of persuasion as meeting a ldquopersuadeersquosrdquo needs and goals An additional benefit of this exercise was that it helped me show that the ldquotheory of the caserdquo is not a rigid concept but a shifting one depending upon the needs of the particular audience regregregregreg

1 Meeting the needs of a person you are trying to persuade is the most important and effective part of persuasion For an in-depth discussion of this idea see Norbert Aubuchon The Anatomy of Persuasion 48-57 (1997) (Chapter 6 ldquoNeedsrdquo) 2 How to meet the particular needs of judges is the subject of an article-in-progress of mine ldquoThe Five Crsquos How to Court a Judgerdquo (the five Crsquos describe the most common needs for anyone in the judicial role the need to be Conscientious Conservative Conformist to use Common sense and to Crank out the work) The idea is the basis of one of my CLE programs ldquoThe Art of Persuasionrdquo Please call me at 302-377-2047 or e-mail bjfolzyahoocom for a copy 3 Special thanks to Susan Simms of Capital University Law School whose problem I adapted

THE SECOND DRAFT 4

20 THE SECOND DRAFT

Ruth-Ellen Post formerly Director of the ABA-approved programs in Paralegal and Legal Studies atRivier College has joined the faculty at Franklin PierceLaw Center in Concord New Hampshire where shenow teaches first-year law students as Professor of LegalSkills

Norman G Printer is the new Director of LegalWriting at the University of Mississippi

Wayne Schiess (Texas) published Meet ALWD TheNew Citation Manual 64 Tex BJ 911 (Oct 2001) InOctober the law school faculty promoted him to SeniorLecturer

Michelle Simon (Pace University) was namedAssociate Dean of Law Michelle had been the Directorof Legal Writing and led the move to establish Pacersquosintegrated Criminal Law Analysis and Writing Coursetaught exclusively by tenured and tenure-track faculty

Amy E Sloan formerly at George Washington LawSchool is now the Co-Director of the Legal SkillsProgram at the University of Baltimore School of Law

Nancy Soonpaa formerly at Albany is now theDirector of the Legal Practice Program at Texas Tech

The Stetson Law Review published the works ofseveral legal writing professors in a recent editionTerri LeClercq (Texas) The Nuts and Bolts of ArticleCriteria and Selection 30 Stetson LR 437 (Fall 2001)Anne Enquist (Seattle) Substantive Editing versusTechnical Editing How Law Review Editors Do TheirWork at 451 Darby Dickerson (Stetson) CitationFrustrationsmdashand Solutions at 477 Toni Fine(YeshivandashCardozo School of Law) Glory Days TheChallenge of Success Beyond Law School at 529 andDavid Romantz (University of Memphis) BookReview at 611 (reviewing Elizabeth Fajans amp Mary RFalk Scholarly Writing for Law Students Seminar PapersLaw Review Notes and Law Review Competition Papers(2d ed West 2000))

Kent Streseman (Baylor) formerly a Visiting AssistantProfessor at Chicago-Kent has joined the Baylor writingfaculty which is a ldquodirectorlessrdquo program

Evelyn Tombers (Thomas C Cooley Law School) hasbeen elected Chairperson of the State Bar of MichiganrsquosAppellate Practice Section She has previously servedas the sectionrsquos newsletter editor council memberTreasurer and Chair-Elect

Barbara Tyler (Cleveland-Marshall) has been promotedto Director of Legal Writing She will also be servingwith Lou Sirico (Villanova) on a Scholarship

Committee for members of LWI whose schools will notpay for them to attend conferences

Lorri Unumb (George Washington) is the new directorof the Legal Research and Writing program She wasformerly with the Department of Justice and taught as anadjunct at GW for two years

Nancy Wanderer (Maine) authored Writing BetterOpinions Communicating with Candor Clarity and Style anarticle on appellate decision writing which will bepublished in the forthcoming January edition of theMaine Law Review

Melissa Weresh (Drake) published two articles TheALWD Citation Manual A Coup de Grace 23 UALR LJ 775(Spring 2001) and The Unpublished Non-precedential DecisionAn Uncomfortable Legality 3 J of App Prac amp Process 175(Spring 2001) She also presented the latter article at thejournalrsquos symposium which was directed toward appellatepractitioners in May 2001 in Little Rock Coleen Barger(University of ArkansasndashLittle Rock) organized thesuccessful symposium

Victor Williams (Catholic University) is the new Directorof legal writing The former director Michael Koby hasmoved to Washington University to be an associate directorof the LRW program there

The International Law Institute of Washington DCpublished the second edition of Mark E Wojcikrsquos (JohnMarshall Law School) book Introduction to Legal English alegal course book for lawyers and law students who speakEnglish as a second language He also conducted a two-week legal writing program in Washington DC and athree-week legal drafting training program in Singaporeand lectured in Indonesia on basic principles of clear legalwriting for lawyers who speak English as a secondlanguage He continues to serve as Co-Chair of theInternational Human Rights Committee of the ABASection of International Law and Practice and as ViceChair of the International Health Law Committee of thatsection He was also named a Vice Chair of theInternational Criminal Law Committee of the ABACriminal Justice Section In 2002 he will be on sabbaticalin Hawaii

New Legal Writing FacultyAppalachian welcomes a number of new LW professorsthis year David ButleRitchie (from Templersquos LLMprogram) who also teaches Dispute Resolution WendyDavis (Suffolk) who will also be teaching a Real EstateTransactions practicum Stewart Harris (from privatepractice and the University of Floridarsquos Levin College ofLaw) and Taylor Simpson-Wood (Tulane) who both will

Creating Facts (continued from page 1)

of the creation of fact I ask half my students to leave the room and tell the remaining students nothing more than that they have been asked by a friend to watch a bicycle that is sitting in the courtyard of the law school I turn off the lights and begin to play a videotape For the first minute of the tape the students see the courtyard and the bicycle Then a young man carrying a box walks up the stairs from the courtyard to the front door stumbling and dropping the box As he picks himself up another man walks out through the doors and pushes somethingmdashperhaps a wheeled dollymdashaway from the steps That concludes the video I then tell the students who viewed the tape that they have been contacted by an attorney who wants to talk to them about the events they witnessed in the courtyard

The students who were outside the door are now asked to return I have given them instructions that they are cast as attorneys for either NYU or Ace Trucking and that Ace had delivered a small lamp to NYU but it had arrived broken These students are told that some of their colleagues had been in the courtyard at the

time of the delivery and are available for an interview about what they had seen Thus each student interviewer is paired with an interviewee for a fifteen-minute interview and the whole class then debriefs the process Students are uniformly amazed at the staggering variety of accounts they have given and received about what happened in the courtyard The man with the box was 20 or 30 wearing a jacket either red or blue To some the dolly was in plain view to others it was a hidden danger He either tripped because of the dolly or despite it the box was both big and small and he carried it comfortably and awkwardly Some students inevitably report having heard a rattling sound after the man dropped the box while others are firmly convinced that the box never made contact with the ground The contrasts and contradictions continue as to virtually every detail of what the interviewees observed

A critical revelation students have is that by virtue of their advocacy position they asked often subconsciously questions designed to elicit facts that would be favorable to their client For example attorneys for Ace asked ldquoDid the man trip over the dollyrdquo instead of the more open-ended ldquoWhat caused the man to stumblerdquo Other students realize

that the dynamics between interviewer and interviewee shaped the account the interviewees gave and that an interviewerrsquos verbal and non-verbal cues can subtly but powerfully guide a witness in a particular direction

In the next phase of the interview the students critique an affidavit that is based upon this interview and they wrestle with the ethical constraints and challenges that are inherent in fact development By the end of the exercise students have gained a richer and more nuanced perspective on the subjectivity of fact and the implications that advocacy has at the earliest stages of an attorneyrsquos engagement with an issue regregregregreg

1 At NYU Lawyering is a required year-long course for first-year law students Lawyering routinely places students in role as attorneys in a variety of simulated practice settings and demands that students rigorously analyze their experiences to begin to understand the sophisticated interactive fact-sensitive and interpretive work that is foundational in legal practice As part of this process Lawyering students engage in legal research draft memoranda and write briefs on a range of complicated legal issues They interview counsel negotiate mediate and engage in formal and informal oral advocacy

Let Bush and Gore Teach Persuasion Susan Hanley Kosse (University of Louisville Brandeis School of Law)

Teaching persuasion has its challenges Not only do you have to teach all the sections of the brief you also need to get the students to incorporate themes tell a story and write with ldquopunchrdquo Almost every legal writing text has sample briefs in the appendix Although intended to be helpful the students are unfamiliar with the cases and facts the briefs are based upon so they do not have the necessary context to appreciate the briefs Last semester I addressed this problem by teaching persuasion using the briefs filed in the Bush v Gore Supreme Court case (531 US __ (2000) briefs can be accessed at http supremelpfindlawcomsupreme_courtbriefs index2000html looking under ldquoOctober 2000 termrdquo) Because the students were already aware of the issues that gave rise

to the lawsuit the briefs provided very fertile ground to discuss many persuasive writing concepts

At the beginning of the spring semester I assigned both briefs to be read in their entirety Each week as I taught a different section of the brief I asked the students to reread that section in the partiesrsquo briefs Using the editing checklist in our text (Writing and Analysis in the Law by Shapo Walter amp Fajans) I asked the students to critique the various sections of the brief The students did not always agree with the lawyersrsquo drafting For example in the Gore brief the questions presented were not framed to suggest an affirmative answer We discussed the pros and cons of this approach and how the questions could be redrafted The headings provided another example of an approach that did not meet the textbook guidelines Both briefs included headings that did not

include relevant facts or reasons to support the legal contentions favorable to the client Again we discussed whether the headings could be made stronger by including those relevant facts or if there may be reasons for not including them

The briefs were best used to illustrate the various methods of persuasion the lawyers employed I asked the students to read the introductions to both briefs and tell me which they thought was most persuasive and why The students were split but not always along their political ideologies Most justified their choices because a particular brief rsquos theme was more evident and compelling to them The theme for Bushrsquos brief was that the Florida Supreme Court was a renegade court trying to change all the rules in a haphazard fashion To reinforce this theme the words ldquoarbitrary standardless selectiverdquo appeared

CONTINUED ON PAGE 6

THE SECOND DRAFT 5

THE SECOND DRAFT 19

courses including The Art of Persuasion in WilmingtonDE

Scott Fruehwald (Hofstra) authored The Principled andUnprincipled Grounds of the New Federalism A Call forDetachment in the Adjudication of Federalism which will appearin the February 2002 issue of the Mercer Law Review

Kristen Gerdy (Brigham Young University) is now theDirector of the Rex E Lee Advocacy Program at BYUrsquosJ Reuben Clark Law School She has published twoarticles Making the Connection Learning Style Theory and theLegal Research Curriculum 19 Leg Ref Servs Q 71 (2001)and The Internet Alternative 19 Leg Ref Servs Q 119(2001) She also won an award from LexisNexis and theAmerican Association of Law Libraries for an articletitled Teacher Coach Cheerleader and Judge PromotingLearning through Learner-Centered Assessment which will bepublished in the January 2002 issue of the Law LibraryJournal

Jessie Grearson the Writing Advisor from the JohnMarshall Law School recently co-authored a book calledLove in a Global Village (University of Iowa Press) thebook is ldquoa celebration of intercultural families in theMidwestrdquo

Sonia Green formerly at Chicago-Kent is now JohnMarshall Law Schoolrsquos new Associate Director of theLRW program

Christine Hurtrsquos (Houston Law Center) article Who WillInherit Citation Network Effects at Work in the Legal CitationIndustry will be published in volume 87 of the Iowa LawReview (forthcoming 2002) The article explains antitruststrategies used by new products to compete withestablished products and shows how the ALWD CitationManual uses those strategies

M H Sam Jacobson (Willamette) published A Primeron Learning Styles Reaching Every Student 25 Seattle U LRev 141 (2001) and The ALWD Citation Manual A ClearImprovement Over the Bluebook 3 J of Appellate Prac ampProcess 139 (2001)

Steve Jamar (Howard) has recently published severalarticles Everything Old Is New Again 22 Pace L Rev __(2001) (an essay sparked by Anthony G Amsterdam ampJerome Bruner Minding the Law (Harv U Press 2001))A Lawyering Approach to Law and Development 27 NC JIntl L amp Com Reg 31 (2001) The Human Right ofAccess to Legal Information Using Technology To AdvanceTransparency and the Rule of Law 1 Global Jurist Topicsno 2 art 6 1-14 (2001) ltwwwbepresscomgjtopicsvol1iss2art6gt with Konstantinos Kalpakis amp Kenneth JMarkowitz Annotated XML Legal Document DTD for ELISamp GLIN LegalXML Unofficial Note ltwwwlegalxmlorg

citationsgt (April 18 2001) and Book Review Struggling ToFind Our Way in a Multi-Religion World 16 JL amp Religion101-105 (2001) (reviewing Religion and International Law(Mark W Janis amp Carolyn Evans eds Kluwer L Intl1999))

While on sabbatical next spring semester Steve Johansen(Lewis amp Clark) will be teaching legal writing at UniversityCollege Cork in Ireland He recently published a book onlegal writing for Latvian law students Juridlsk anal ze untekestu rakst Šana and in conjunction with the publicationvisited Riga Latvia in 1999 and earlier this year

Joseph Kimble (Thomas C Cooley Law School) publishedan article in Court Review a journal of the American JudgesAssociation called First Things First The Lost Art ofSummarizing 38 Ct Rev 30 (Summer 2001) He alsopublished a two-part article called Plain Words in theMichigan Bar Journal 80 Mich BJ 72 (Aug 2001) and 80Mich BJ 72 (Sept 2001)

Susan Hanley Kossersquos (University of LouisvillendashBrandeis) article Student Designed Home Web Pages Does TitleIX of the First Amendment Apply has been accepted forpublication in volume 43 of the Arizona Law Review(2001)

Terri LeClercq (Texas) published Teaching Student Editorsto Edit 9 Perspectives 124 (Spring 2001) She has also beenasked to work on a project coordinated with the FederalJudicial Center in which she will draft class action noticesin plain English

James Levy (Colorado) published an article in the Journalof Legal Education titled The Cobbler Wears No ShoesmdashALesson for Research Instruction 51 J Legal Educ 39 (2001)(forthcoming)

Karin Mika (Cleveland-Marshall) the Assistant Directorof Legal Writing has been appointed as the Moot CourtAdvisor for the schoolrsquos nationally renowned Moot Courtteam

Samantha Moppett (Arizona State) a Legal WritingProfessor was recently placed on academic professionaltenure track and Judy Stinson LWR Director wasawarded tenure

Deborah M Mostaghel (University of Toledo) authoredWrong Place Wrong Time Unfair Treatment Aid to Victims ofTerrorist Attacks which will appear in the Brandeis LawJournal (University of Louisville) The article discussestypes of aid available for victims of terrorism under ourcurrent federal laws

Sandy Patrick has moved from Wake Forest to Lewis ampClark

Let Bush and GoreTeach (continued from page 5)

approximately 24 times in Bushrsquos brief and the words ldquonewly fashioned judicially created rewroterdquo were written at least 22 times In contrast Gorersquos theme was that the Florida Supreme Court was simply faithfully applying the state law The Gore brief rsquos use of the word ldquoconsistentrdquo at least 16 times framed the issue entirely differently than the Bush brief The constant repetition of these words and phrases illustrated to the students how themes should be continually reinforced throughout the brief Even the statement of case was used to persuade with Bushrsquos brief including facts about the first Supreme Court review which were noticeably absent from the Gore brief

The briefs provided many excellent examples of rhetorical devices that make a brief outstanding For example look at the well-developed imagery in this sentence from the Gore brief ldquoNor does Article II create a lsquostate-constitution-freersquo zone in a statersquos lawmdasheven assuming it would be possible to pull the thread of state constitutional law out of the fabric of a statersquos law when administering or adjudicating questions bearing on elections for President and Vice Presidentrdquo (Gore brief page 21) Bushrsquos brief is also filled with illustrative writing including ldquoThe unconstitutional flaws in the Florida Supreme Courtrsquos judgment immediately bore further unconstitutional fruit rdquo (Bush brief page 2) and ldquoIndeed because those counts have been untethered from the minimal statutory moorings that the legislature prescribed for vote-counting rdquo (Bush brief page 28)

You could require students to read the court decision too Analyzing what the court found persuasive from the partiesrsquo briefs might be very enlightening Did the court cite the partiesrsquo briefs Did the court criticize or affirm the partiesrsquo arguments or cited authority How did the court frame the issues compared to the partiesrsquo categorizations By carefully dissecting the opinion the students can begin to ascertain the effectiveness of certain arguments rhetorical techniques and methods of organization in briefs

The Bush-Gore controversy may be old news now but there will always be a

highly publicized case you can use Many briefs are now accessible on the Internet Do not worry about finding the ldquoperfectrdquo brief Sometimes a brief with deficiencies is more helpful for the students You can require students to edit those parts and explain to the class why they think their edits improve the brief Even briefs that do not match up perfectly with the editing checklists reinforce the concept that there is no perfect way to write There may be legitimate reasons sometimes to ignore the checklist guidelines

In conclusion using a ldquoreal liferdquo familiar case made teaching the multiple facets of persuasion easier more interesting and hopefully more enjoyable for my students regregregregreg

Advocacy Lessons from Madison Avenue Sue Liemer (Southern Illinois University School of Law)

When I graduated from college the first job I held was as a copywriter for Young amp Rubicam an international advertising agency in New York City I learned many lessons about persuasion literally on Madison Avenue and I share them with my students now

Perhaps the most important lesson came from a deceptively simple sheet of paper the company called ldquoCreative Strategyrdquo Before a copywriter and art director could create an ad the Creative Strategy form had to be filled out and approved The very concept of such a form is news to most of my students Even those artsy people in ad agencies whose work seems so much like play (think Darren in the old TV show ldquoBewitchedrdquo) are required to have a strategic plan before they start writing Surely an attorney trying to persuade a judge or jury to ldquobuyrdquo an argument should have a strategic plan before starting to write too

The hardest item to complete on the Creative Strategy sheet was always the first

line After weeks of meeting with the account managers client representatives and market research experts researching the product from every possible angle and trying to learn everything about how the product in question could solve a problem or fulfill a need the American public did not yet even know it had I had to write the purpose of the ad in a single sentence I wrote and rewrote and rewrote trying to figure out the purpose of the work assignment

I encourage my legal writing students to discipline themselves and hone their thinking in much the same way I tell them to research take notes on discuss and analyze their clientrsquos problem And then when they think they are ready to start writing they should sit down and ask themselves what they are trying to do What is the purpose of the document If they have really developed a strategy of the case they should be able to write out the purpose of their document in one succinct sentence

The Creative Strategy sheet also required a succinct description of the target market for an ad An entire department of experts provided the background research for this crucial part of the strategic plan Any kind of persuasive writing is more effective if you know all you can about the people with whom you are trying to communicate how they are likely to perceive what it is you are trying to say and the lingo they use to talk about such things I urge my legal writing students to write down who their audience is and everything they know about that audience

At first my students think these steps are so intuitive that they do not need to bother writing them down In class we go through the exercise collectively and they come to realize that they have to make conscious strategic choices to hone their sense of the purpose of their document Likewise they come to realize that each document potentially has multiple audiences some of which they did not think of right away and that they know quite a bit about those audiences to factor into their writing They come to appreciate that a strong sense of ldquopurposerdquo and ldquoaudiencerdquo sells both Brand X and their clientrsquos case regregregregreg

THE SECOND DRAFT 6

18 THE SECOND DRAFT

NE W SPublications Promotionsand Other AchievementsRandy Abate joined the Legal Writing Faculty at Rutgers-Camden Law School in July He previously taught in theWidener-Harrisburg Legal Methods Program and heserved as director of that program for the last three yearsIn October he delivered a presentation to the ABA LawStudent Division Third Circuit Fall Roundtable titled Howto Enhance the Moot Court Program at Your Law School

Jala Amsellem (George Washington) has been namedthe new Associate Director of the legal writing program

Bonnie Baker (NYU) has been named Acting AssistantProfessor of Law

Grace Barry (LSU) is the new Director of Legal Writingat Louisiana State University and will serve as the firstfull-time director of that program Grace who has taughtat LSU for two years has also begun the process of hiringtwo new teachers which will give the program a total ofsix full-time professionals

Peter Bayer (UNLV) recently joined the writing programat University of Nevada-Las Vegas He also published APlea for Rationality and Decency The Disparate Treatment ofLegal Writing Faculties as a Violation of Both Equal Protectionand Professional Ethics 39 Duquesne L Rev 329 (2001)arguing that the disparate terms and conditions ofemployment for full-time writing professors cannot meeteven the minimal standards of rational basis theory underEqual Protection and thus constitute a violation of anti-discrimination principles

Peter Cotorceanu (Washburn) published Estate TaxApportionment in KansasmdashOut With the Old In With the Newin volume 70 of the Journal of the Kansas Bar Associationwhich was published in October

Christine Nero Coughlin (Wake Forest) was namedDirector of the legal writing program The faculty alsoagreed that legal writing faculty should attend facultymeetings and that the LWR director would have votingrights

Jo Anne Durako (Rutgers-Camden) was appointed to theeditorial board of the Journal of Legal Education Herarticle Second-Class Citizens in the Pink Ghetto Gender Bias in

Legal Writing was recently published in that journal andthe article will be part of her presentation at the AALSconference in New Orleans addressing Labor andEmployment in the Academy A Critical Look at the Ivory Tower

Linda Edwards (Mercer) has authored a book on futureinterests which will be published in December Estates inLand and Future Interests A Step By Step Guide (Aspen L ampBus 2001) In February the third edition of her legal writingbook will be published Legal Writing Process Analysis andOrganization (3d ed Aspen L amp Bus 2002)

Suzanne Ehrenberg formerly of Chicago-Kent hasjoined the faculty at Northwestern as Clinical AssociateProfessor of Law

Jessica Elliott formerly at Quinnipiac University becameDirector of the writing program at Roger WilliamsUniversity

Judith Fischer (University of LouisvillendashBrandeis)authored an article called Public Policy and the Tyranny of theBottom Line in the Termination of Older Workers which willappear in an upcoming edition of the South Carolina LawReview

Brian Foley (Widener) and Ruth Anne Robbins(Rutgers-Camden) published Fiction 101 A Primer for LawyersOn How To Use Fiction Writing Techniques To Write PersuasiveFacts Sections 32 Rutgers LJ 459 (Winter 2001) They alsotaught a CLE course Storytelling for Lawyers How to Use theMost Powerful Tool of Persuasion to Win Your Cases with novelistSolomon Jones in Philadelphia PA

Brian Foley (Widener) recently published severalnewspaper articles including some for the Keene (NewHampshire) Sentinel where he formerly worked as areporter Editorial Bombing Fallout Dissent in US AgainstPolicies Remarkably Quiet HARRISBURG SUNDAYPATRIOT-NEWS October 24 2001 at B17 Should I SeeAirplane Security as a Do-It-Yourself Job KEENE (NH)SENTINEL October 17 2001 at 6 Editorial Letrsquos BuildRather Than Bomb WILMINGTON NEWS-JOURNALSeptember 25 2001 at A11 Editorial Revenge Can Leave aMighty Hangover KEENE (NH) SUNDAY SENTINELSeptember 16 2001 at D2 Editorial Cards Could Make ItSafer for Taxi Drivers PHILADELPHIA METRO August21 2001 at 5 Editorial What Allen Iverson Has Taught MeHAMPTON ROADS (VA) DAILY PRESS June 19 2001(Iversonrsquos hometown paper) He also taught several CLE

Take My Garbagemdash Please Teaching Persuasion Through Arguments Anyone Can Make

Sheila Simon (Southern Illinois University School of Law)

If your school is like ours you have to force some students to be ldquoobjectiverdquo in the first semester Some do it naturally and some have to work hard at avoiding the Perry Mason moment of their dreams Then the first semester ends and we shift gears into persuasion Again some students find it easy and some clam up just at the thought of a Perry Mason moment And if shifting into persuasion isnrsquot scary enough they all know about the one harrowing act they will have to perform during the semestermdash an oral argument

I use a quick exercise that helps people understand that they come equipped with some persuasive skills and helps them realize that public speaking will not yield instant death

At the beginning of the first class of the second semester I give each student a slip of paper just a little bigger than a fortune cookie message The slip of paper describes an argument the student must present to the class None of the arguments are about legal topics but all of them help illustrate a point about persuasion Each student is asked to come to the front of the class and present her or his argument It takes a minute or so per student

Two students get assignments to send a child to bed One student is told she is the childrsquos babysitter and the next student is told she is the childrsquos parent Each student makes a short persuasive speech to the class The babysitter often tries to cajole the child to go to bed sometimes offering him- or herself as incentive ldquoIf you donrsquot go to bed on time I donrsquot know if I will be allowed to be your babysitter anymorerdquo The parent is usually more direct ldquoYou will lose television privileges

for Saturday morning if you donrsquot high tail it into bed right nowrdquo After both are done I note that the difference between a babysitter and a parent is one of authority A babysitter uses persuasive authority and a parent uses mandatory authority This shows the students that they already recognize difference in authority and can use it to their advantage

Two other students receive assignments to persuade a roommate to take out the trash In the first scenario it is the roommatersquos turn to take out the trash because she didnrsquot do it last week In the second scenario the student is asking for a favor because she is not feeling well She is a bit hung over from the night before and knows that the roommate disapproves of alcohol consumption The first task is easy The second task takes much more finesse Sometime students given the second scenario leave out the reason for feeling poorly Others acknowledge it as a way to avoid a potentially bigger problem and try to turn it to their advantage ldquoI know you donrsquot approve of drinking and I think I am learning why Could you possibly take out the trash for merdquo After these students are done I point out that we all know good facts from bad facts we all assess the different ways facts can be used and we put those skills to work in persuasion every day

One student is given a trick assignment ask the Dean for permission to take an open can of soda in to the classroom At our school everyone understands the contextmdashwe just got new carpetmdashand you might as well be asking to pour grape juice directly on the carpet The message here is that just because you can ask for something doesnrsquot mean you have to ask and long term interests suggest that you just smile and nod at the Dean and put the can in the recycling bin

These real life argument slips are easy to make and tailor to characters or circumstances of any school For my list as a starting point e-mail me at ssimonsiuedu Your students will appreciate having a little fun while learning and they will all have put one developmental milestone behind them For the rest of the semester you will have examples to refer back to when you are illustrating a point about choosing

authority working with facts or selecting strategies You will also have an insurance policy for the students who change colors or sweat profusely before speaking in public evidence that they can present an argument and survive regregregregreg

Modeling Placing Persuasion In Context Myra G Orlen (Western New England College School of Law)

Students often ask for models Last year we devised an approach that provided our students a model of both persuasive writing and oral argument and at the same time satisfied our desire to place persuasion in a more realistic context

At Western New England College School of Law we have historically introduced persuasion in the spring semester of our year-long course Working with a single fact pattern students have drafted a major objective memorandum and then converted that objective memorandum into a persuasive memorandum either in support of or in opposition to a pre-trial motion The pre-trial motion has then become the subject of the studentsrsquo oral argument

We have often struggled with the notion that requiring students to simultaneously draft opposing motions on any given issue does not accurately reflect what happens in the real-world practice of law We considered and then discarded the idea of providing half of the students with a pre-trial motion and requiring them to draft supporting memoranda leaving the remaining students with the task of drafting responsive memoranda That scenario seemed to result in an uneven learning experience in the context of an open research assignment

Last year instead of beginning the semester with students drafting an objective memorandum we presented

CONTINUED ON PAGE 8

THE SECOND DRAFT 7

THE SECOND DRAFT 17

Commission this court recognizes its wide experience and technical knowledgein regulation of motor carriers Furthermore by provisions of Chapter 194the legislature has conferred wide discretionary powers upon this commission

A third group of students habitually divide the subject andverb with a modifying phrase

Summary judgment when there is no genuine issue of material factmay be awarded

Case law interpreting this statute has held that ldquoemployeerdquo excludesofficers and directors of a corporation

This structure can add interest and emphasis When overusedthough it sounds hesitant or stuffy It is hard to read so its overusetires and irritates the reader

Ajax Truck Lines at the time of filing the application had for manyyears as a common motor carrier transported goods in interstate commerceAjax under a permit from the Interstate Commerce Commission transportedgoods from points outside the state to Milwaukee Racine and Kenosha Italso under an intrastate private contract motor carrier license served aboutten shippers between these three cities Therefore Ajax at the time of filingits application and the hearings thereon was already operating trucks dailybetween these three cities

Finally some students use short sentences frequently

The complaint presents no genuine issue of material fact Thus summaryjudgment is appropriate

Case law establishes that ldquoemployeerdquo excludes a corporationrsquos officersand directors Thus Mr Gregory cannot be the corporationrsquos employee

This structural habit creates an interesting no-nonsense paceOverused however it can become hard to read It can also createan impatient rather cranky tone

Jacob Jones made his will on November 16 1995 He was 65 He hadthree sons Joseph was forty-two Howard was thirty-four and Aaron wastwenty-four His one daughter Sarah was thirty-five Sarah was married toJason Sanders Sarah had two children Sally and John Sally was eightJohn was eleven The testator and his children were all on good terms Thetestator died on July 16 1999 His will had created a trust Under the trustthe grandchildren received $8000 annually

Teaching students to manage sentence structure habits offersseveral advantages It provides students with an area of choiceand teachers with an opportunity to illustrate the variety possiblein legal writing It encourages both to master the language itselfsilencing complaints that legal writing teaches only forms andorganizational conventions

ALWD ManualInternational and ForeignLaw Edition to be Publishedby AspenDiane Penneys Edelman (Villanova University School of Law)Chair International and Foreign Law Edition Committee ALWD

Like the United States each of the more than 180 nationsin the worldmdashand even more international and regionaltribunals and organizationsmdashhave generated constitutionstreaties statutes court decisions administrative regulationsscholarly and other material that legal practitioners andacademics rely upon in their professions Many of thesecountries courts and organizations have also developedtheir own citation systems to refer to these documentsmany have not

In spite of these facts American legal citation manualshave for many years superimposed a decidedly Americanpoint of view or style of citation upon foreign andinternational documents instead of acknowledging andusing the ldquoindigenousrdquo or ldquonativerdquo method of legal citationand hierarchy of legal authority used in other countriesand by foreign and international tribunals and organizations

Recognizing the need for comprehensive treatmentof international and foreign law citations Aspen Law ampBusiness has announced that it will publish a separateInternational and Foreign Law Edition of the ALWDCitation Manual in early 2003 The goal of the InternationalEdition will be to provide the user with professionallydeveloped guidelines for citation of legal materials used inother countries and by foreign and international tribunalsand organizations that recognize existing forms of legalcitation and hierarchies of authority (eg civil law Islamiclaw) that are different from the American system Inaddition the International Edition will provide the user witheasy-to-follow steps for deciphering and composingcitations to foreign and international legal materials Mostimportant development of the International Edition will beundertaken under the supervision of ALWD by a diversegroup of international law librarians legal writingprofessionals practitioners and law students

It is anticipated that the International Edition will usewhere available indigenous or internally developed citationformats It will include diagrams and examples of citationformats informational ldquosidebarsrdquo and references torelevant web and print sources of citation

The first edition of the International Edition will includecitation formats for approximately 50 countriesinternational and regional tribunals and organizations Thecountries and entities included represent a variety of legalsystems geographical locations and sizes Citation systemsfor additional countries and entities are in developmentand will be available at wwwalwdorg

Know the Audience Teach toYour Audience Ruth Anne Robbins (Rutgers School of Lawmdash Camden)

We know that the starting point of any persuasive writing course should be the underlying principles of legal writing and not just the rules We remind our students to think of the documentrsquos goal and the documentrsquos particular reader We emphasize that the more the student

Modeling Persuasion (continued from page 7)

them with a pretrial motion and supporting memorandum on a ldquodrop awayrdquo issue The studentsrsquo first task was to respond to the pretrial motion Thus the students had a model memorandum to follow to assist them in drafting their first persuasive memoranda They also had a head start on the necessary legal research because the memorandum in support of the motion contained citations to appropriate legal authorities

During the week that the students turned in their memoranda opposing the initial pretrial motion the legal research and writing faculty ldquoarguedrdquo the motion before a ldquojudgerdquo in class This plan allowed us to model oral argument for our students well before they were required to conduct their own oral arguments at the end of the semester Later in the semester while the motion was ldquopendingrdquo the students attempted to negotiate the claim

Our fact pattern involved a school-aged boy who was mistakenly dropped off by his school bus driver at the wrong stop The boy wandered in an unfamiliar neighborhood until a vagrant forced him into an open basement and beat him The boy and his parents sued the municipality as the operator of the bus and the owner of the building in which the assault took place The claim against the municipality provided the ldquodrop away issuerdquo The drop-away issue was whether the plaintiffs had

knows about the reader the more she can tailor her argument to that readerrsquos needs and goals We talk about the difference between a trial court reader and an appellate court reader

These ideas are not abstract to us after all many of us clerked for and practiced in front of different courts We hope that most of our students will remember our lessons as they start their summer internships or their post-graduation clerkships The trick may be making the lesson more concrete during the actual course itself

provided sufficient notice of their claim to the municipality under the applicable tort claims act

Adopting the modeling approach had a variety of benefits It was beneficial to begin the semester by teaching persuasion with a model memorandum that fit within the context of our fact pattern for the semester We were able to provide a model that complied with both the format and structure that we wanted our students to use in their memoranda The students were appreciative

Second this approach allowed us to introduce persuasive writing incrementally We were able to introduce our students to persuasive writing using a straightforward legal question Additionally the students were able to see how persuasive writing fits within the context of a legal case

Third on the date that we modeled oral argument the students were encouraged to ask questions regarding the oral argument Students asked candid questions of the attorneys and the judge Oral argument was made a little less threatening to most students When the time came to prepare our students for their own oral arguments we were able to refer back effectively to the model oral argument

The use of a contextual model to teach persuasion has proven successful in our classes This is an approach that can be used along with other techniques and exercises to teach persuasion to first-year law studentsregregregregreg

I realized this past year that we can reinforce the idea of knowing onersquos audience by adapting our own teaching methods as we learn more and more about the particulars of any given class The more closely we can zero in on our own audiencersquos needs and goals the better we can persuade our audience to accept the message we are trying to convey

My own teaching has improved (I like to think) since I started to consciously incorporate the principles into my lesson plan As I plan each class I spend some time thinking about this particular body of students in addition to reflecting upon what has worked in the past As the semester progresses I might change a lesson plan from previous years if I think that this particular group needs more experiential learning or more modeling of sample answers I may even retry something that previously received a lukewarm reception For example in my upper-level brief writing course this year I am using excellent student papers as the basis for selected classes This has allowed me to prepare a class even during weeks when I am commenting or conferencing on papers Whether I do this next year however will depend on what my upper level students have already absorbed from other courses before taking my course

This audience-centered approach helps explain why some of us will look at an exercise and think it is fabulous whereas others might disagree Undoubtedly the exercise is fabulous for a particular audience of students This approach also explains why some law review articles are selected for publication and why others arenrsquot why I looked over this article several times before submitting it wondering whether it would appeal to the editors of The Second Draft and why certain schools win national moot court competitions year after year A few years ago one of our own national moot court teams placed very high in the brief portion of a competition I asked one of the team members what she had done so that I could use the information to teach others She laughed and told me that she and her partner had emulated previous winning briefs Know your particular audience

THE SECOND DRAFT 8

16 THE SECOND DRAFT

From the Desk of the

Writing Specialist regregregregreg regregregregreg regregregregregA Matter of StyleMary Barnard Ray (University of Wisconsin Law School)

Law students who love creative writing often hate legal writingThey complain that repeating a word is boring usingstraightforward transitions is too obvious writing short sentencesis childish and omitting unneeded detail makes the storyuninteresting In frustration these students declare that legalwriting means writing with no personal style The studentsrsquocomplaints often seem self-focused and you want to respondThatrsquos right Wersquore here to do a job not celebrate you But stating thatwould alienate the student and it would be inaccurate

Personal style exists in legal writing and denying its existencewould shortchange the genre Instead we can teach the studentsto become better writers by recognizing and managing their ownstyles Memos written by different students on the same topicvary in effect even when students use the same cases legal termsand objective tone The memosdiffer despite starting eachparagraph with a thesis and usingthe same organization They evendiffer though making the sameerrors Even with so manysimilarities personal style createsvariations in the overall effect ofeach memo

In legal writing personal style lies predominately in patternsof sentence structure Most student writers have one or twostructural habits that mark their personal styles even if they areunaware of the habits Over the course of a document the patterncreated by these habits changes the rhythm of the text and affectsthe way the reader processes the content Subtly the patterncommunicates an impression of the writer no-nonsense or elegantfocused or wide-ranging in thought These structural patterns arefundamental differences yet are acceptable in legal writing

Each structural pattern however has its limitations successfulwriters respect those limits They avoid overusing one structureknowing how to craft alternatives If we teach the students tomanage their own structural patterns successfully we improvethe quality of their writing without sacrificing personal choice orindividual style

Four common structural habits appear most often each withits advantages and limitations For example some writers habituallystart each sentence with the subject and verb

Summary judgment may be awarded when there is no genuine issue ofmaterial fact

Case law has interpreted this statute to exclude officers and directors ofa corporation from the meaning of ldquoemployeerdquo

This structure is useful because it is easy to comprehendThe sentence presents the structural heart of the sentence firstand adds detail later When this structure is used repeatedlyhowever the text becomes less than clear With no introductoryphrase to provide a transition the reader has to determine thelogical connection between this sentence and the previous oneThis task slows the reader particularly when the logic iscomplex

Richard Baxter was killed when he accidentally fell down an elevatorshaft He was working at the Acme Toy Company a corporation He hadbeen going about the building to ascertain the quantity of certain items ofmerchandise kept in stock The elevator door had been left open while theelevator was being repaired Baxter stepped into the shaft and fell four stories

Other students habitually start sentences with introductoryphrases

When there is no genuine issueof material fact summary judgmentmay be awarded

Interpreting this statute caselaw has held that ldquoemployeerdquoexcludes officers and directors of acorporation

When accurately focused introductory phrases clarify thelogical flow between sentences and between paragraphs The writermay echo an idea from the previous sentence Applying this theory or After the accident In a thesis sentence the writer may usean introductory phrase to communicate the paragraphrsquos relationto previous paragraphs Unlike other jurisdictions Anintroductory phrase can create anticipation adding interest to thetext For example the following sentence sounds like the beginningof a story

While going about the Acme Toy Company to ascertain the quantity ofcertain merchandise Richard Baxter fell down an elevator shaft

But when overused introductory phrases create a haltingrhythm that sounds less assured particularly when those phrasesstate caveats Introductory phrases can also remove energy fromthe text lulling the reader into inattention

In this case the commissionrsquos determination came before the trial courtfor review under the Uniform Administration Procedure Act Describingitems to be considered during review this Act includes ldquoexperience technicalcompetence and specialized knowledge of the agency involved as well asdiscretionary authority conferred upon itrdquo Regarding the Public Service

Personal style exists in legal writing and denying itsexistence would shortchange the genre Instead we can teachthe students to become better writers by recognizing andmanaging their own styles

My students are aware that I ldquoteach to the audiencerdquo I tell them up front that I will be tinkering with the lesson plan as I learn more about their needs I have found it gives the students more incentive to complete their assignments on time and with a best effort I can use my own actions as an example of persuasive technique ldquoWere you persuaded to use more rule explanation after I showed you a great example and we discussed why it was so good Yes Well the judge would probably feel the same wayrdquo

I am not advocating catering to every whim of a class My course still has required reading exercises deadlines mandatory conferences and drafts with rewrites The boundaries are not going to change Not everyone is going to get an ldquoArdquo either unless everyone deserves an ldquoArdquo The studentrsquos appointed goal of writing a great brief is still the same goal each year What can change though is the approach I take to help students accomplish the goal regregregregreg

Ask the Audience Patricia A Legge (Rutgers School of Lawmdash Camden)

I believe students best learn to refine their writing by gaining insight into the principles behind the rules of legal writing When teaching persuasive techniques such

foundation for persuading their eventual audience The top five responses were clarity a good introduction an objective tone technical perfection and explanation of the writerrsquos analysis

Overwhelmingly the judges and law clerks indicated that they were persuaded by clarity Telling students this should help them understand why we harp on such things as logical organization and careful editing Our students are or should be aware of the backlog of cases that todayrsquos judges face Students should be taught that it is imperative that their points be conveyed in a single cursory read out of respect for the premium that a judgersquos time represents

Along those lines the judges look for a good introduction (perhaps just in case there is not enough of that premium time to read the entire brief before argument) The principle that the students can derive from this is that all readers appreciate context before detail The students probably do not begin relating anecdotes to their friends ldquoin the middle of the storyrdquo Similarly they will better persuade a court by giving the clientsrsquo arguments some context in which to judge them

While providing context is essential providing drama is not The judges are often won over by a succinct non-partisan version of the facts followed by an argument section containing a spartan use of adjectives and adverbs Students should know that their audience has ldquobeen around the blockrdquo a few

Judges like the basics clarity a good introduction an objective tone technical perfection and explanation of the writerrsquos analysis

as Richard Neumannrsquos list of fourteen ldquoArgumentation Techniquesrdquo1 it is essential that the student also learn more about the audience for any given document In the case of brief writing that audience is the court

Recently I conducted a very informal poll of judges and law clerks at the federal courthouse across the street from Rutgers I asked what persuaded these individuals when it came to the briefs submitted the results were in a word comforting As a fairly new teacher of legal writing I was comforted to know that the basics of what we teach the students provide a solid

times and most judges will reveal that they have ldquoheard it allrdquo I tell my students that there is a world of difference between television lawyers playing to a jury and the real-life lawyers writing briefs for judges

The judges feel strongly that credibility is enhanced by using flawless citation style (citing cases that actually stand for the proposition advanced) in a brief void of grammar or spelling mistakes Students can understand the principle that they want to create a user-friendly document to sell their clientrsquos position legal writing teachers can find comfort that emphasis on details is not in vain

Finally it is persuasive when a brief-writer actually applies the law to the facts of the case being argued after including enough detail from the reported cases that the reader can see the logic of the argument We teach students about ldquoRule Proof rdquo or ldquoRule Explanationrdquo but we may need to teach them more about how to explain their analysis with the Goal and Reader in the forefront The argument that connects all of the dots for the judge has a better chance of persuading her

As legal writing instructors we often begin by teaching tried-and-true rules ldquoUse thesis sentences to begin each paragraph stick to the four-part paradigm avoid the use of passive voicerdquo When students ask for a ldquorulerdquo for a particular situation though it may be useful to take a step back and ask ldquowell what would make the most sense in light of the Goal and Readerrdquo The rules we teach provide the framework for persuasion but taking it one step further can give the students a more complete picture Learning about the intended audience can enable students to master the principles of effective writing rather than just following the rules regregregregreg

1 Legal Reasoning amp Legal Writing Structure Strategy amp Style 288-289 (4th ed Aspen L amp Bus 2001)

Persuade with Precedent James P Eyster (Ave Maria School of Law)

The secret to a compelling case-based legal argument is the comparison of the specific facts of the case being considered to the facts of precedent cases While students can often analyze cases and present generalized conclusions about them they regularly fail to persuasively apply the same cases to the facts at issue

Even beginning first-year students often show a masterful understanding of the meaning and significance of precedent cases a keen ability to synthesize the emerging legal standards and a facility in applying appropriate standards to the case at hand These same students however routinely omit both the relevant facts and

CONTINUED ON PAGE 10

THE SECOND DRAFT 9

THE SECOND DRAFT 15

Tips for New Teachers

Doing It AllmdashOver TimeSteven D Jamar (Howard University School of Law)

Donrsquot try to do it all at onceIf you have ever attended an ALWD or LWI conference or

if you follow the conversations on the legal writing listserves youcould get the impression that everyone else is doing all of thefollowing

1 Scholarship2 Designing and implementing legal writing and research

curricula3 Teaching legal writing and research4 Teaching doctrinal courses5 Doing outreach to all of the following stakeholders or

interest groupsa studentsb alumnic judgesd practitionerse cliniciansf doctrinal facultyg administrators (law school)h administrators (university)i legal writing and research program teachers

6 Doing major projects of service to legal writing andresearch on a national scale

7 Mentoring junior members of LWI or ALWD8 Hiringsupervising legal writing and research faculty9 And more

Like a number of my colleagues I have done all of thesethings and continue to do one or two of themmdashbut I have donethem over the course of a dozen years

In my early years I made sure Howard University School ofLawrsquos Legal Reasoning Research and Writing Program (LRRW)was strong I made sure to do my scholarship I did the necessarypolitical work within the law school to keep the program strongand to improve my chances of getting tenure when the time cameand I started to make some contacts with the national legal writingcommunity In those years I did more intentional outreach tostudents faculty and administration than I do now

A bit later I focused heavily on getting tenure and on doing afew things nationally within the legal writing and researchcommunity such as presenting at conferences working on programcommittees and serving on the boards of directors of LWI andALWD As I assumed a larger leadership role I worked primarilyon national organizational structural matters on mentoring otherpotential leaders and to a much lesser extent on supporting the

national political efforts with respect to changing the ABAstandards

More recently I have turned my attention back to the lawschool and university to get rid of LRRW faculty caps This is anongoing project and has involved my doing work at the universitylevel to get known by the right administrators

In the past few years I have also worked to write more aboutmy ideas concerning legal writing and research (Most of my priorscholarly works have been on subjects I found quite a bit easier toget a handle on) I have reduced my work at the national levelsubstantially though I am still contributing in some small waysfor certain initiatives for which I can offer some fairly specialassistance

This year I will focus primarily on programmatic design atHoward University School of Lawmdashthinking about it strategicallyand working to implement some of the ideas if possible in ourcurriculum I will also try to write a few more of my ideas aboutlegal writing and research in general for publication in a year orso I will not be doing much outreach and I will not be doingmuch nationally other than contributing as a member of theALWD Citation Manual Revision Committee

I cannot do everything None of us can My advice is thatyou should determine what is most important for you in yoursituationmdashwhether that is developing your scholarship yourteaching your faculty relations or a national profilemdashthen assessyour strengths and apply them appropriately Get involvednationally at whatever level you can afford now But do not burnyourself out We need you and your energy and ideas over thelong term

A significant reason for the growing clout andprofessionalization of legal writing and research is the growingnumber of folk who have been around for a long enough time tolearn the ropes and to get in positions to pull levers There ismuch to be done for our profession at all levels but no one cando it all and certainly no one can do it all at once And none of usneed to

2002 LWI ConferenceUniversity of Tennessee

College of LawKnoxville TN

Wednesday May 29ndashSaturday June 1 2002

Persuade with Precedent (continued from page 9)

the actual holdings of precedent cases Instead they generalize both the facts of the cases and the legal rules which results in presentations that are both unpersuasive and uninteresting

Benjamin Franklin wrote in The Pennsylvania Gazette in 1773 that if a writer wishes to persuade

(H)e should proceed gradually from Things already allowrsquod to those from which Assent is yet with-held and make their Connection manifest If he would inform he must advance regularly from Things known to things unknown distinctly without Confusion and the lower he begins the better Dr Franklinrsquos advice remains valuable

today especially for lawyers A legal writer should first state what is known ie the facts of the precedential case and establish a clear connection to the facts of the current controversy The greater the similarity of relevant facts the clearer the connection between the earlier case and the current fact pattern

To persuade then a legal writer should proffer to the reader viscerally memorable facts instead of bland forgettable paraphrasing If the defendant in a case was an ldquoestablished pathologist with privileges at six area hospitalsrdquo say so rather than refer to her only as ldquoa medical professionalrdquo In discussing a case in which a grocery clerk told a customer ldquoIf you want to know the price go look for yourself You stink to merdquo the student should quote the offensive language rather than merely stating ldquoa company employee insulted a customerrdquo

After offering memorable facts the student should clearly show how the facts of the precedential case are connected to those of the current case Thus in discussing the claim of a mentally retarded man for intentional infliction of emotional distress a student should explain the plaintiff rsquos retardation Where the plaintiff in an earlier IIED case was a child rather than merely referring to her as ldquoa minorrdquo the writer should make clear that the plaintiff was ldquoa six-year-old girlrdquo Most importantly the writer should link the traits of both plaintiffs making clear the connection between the

Just the Facts Writing Facts PersuasivelyAn Active-Learning Exercise Sharon Pocock (Quinnipiac University School of Law)

Teaching persuasive writing through short exercises such as those found in legal writing texts can be difficult precisely because students donrsquot know the law involved in detail and thus may not realize what facts need to be emphasized or downplayed Another difficulty is that textbook exercises that are multiple choice in form put students in a passive rather than an active role Instead I do an in-class exercise that while short actually obliges students to write themselves This gives the students practice in applying persuasive techniques and enables the class as a group to evaluate different ways of presenting the same facts

two ldquoJust as the plaintiff in the earlier case was an innocent six-year-old girl the plaintiff here has the IQ of an eight year old And just as the young girl was in her home alone when the adult defendant unexpectedly came to her house and harassed her the retarded plaintiff in the present case was alone in the front yard of his group home when the defendant insurance agent attempted to persuade the plaintiff to cancel his disability coveragerdquo As a final example if a court enunciated a three-part test for liability that test should be imparted verbatim and the writer should show how the facts of the current controversy either fit or diverge from each part rather than merely concluding to the mystified reader that the facts in the current case do not satisfy the test

How does one teach students to persuasively communicate precedent Two methods can be used Students can analyze a family of real cases detecting the legally significant facts and relating them to the specific holdings of the cases This teaches skills in spotting and characterizing important elements that might be

For the exercise I choose a problem that students know from an earlier objective writing assignment I prepare a handout that reminds students of the governing legal test and that sets up the procedural history (eg defendant is filing a motion to dismiss challenging satisfaction of one prong of the test that governs the claim asserted) The remainder of the handout presents discrete facts about plaintiff and defendant Sometimes I add additional facts to those that students already know presenting all facts in a list rather than in paragraph form

All students receive the same handout but half of them are assigned to write the Facts from the perspective of the plaintiff and the other half from the perspective of the defendant I

concealed in a multi-layered array of facts The instructor can then elicit those facts that are similar to or vary from the operative facts of the case at issue

The second method presents the students with a ldquono-frillsrdquo exercise containing the facts and holdings of two or three simple cases Students are asked to compare the facts and ruling in each situation to those in a hypothetical case Readers may access an example I constructed at wwwavemarialawedu communityhandoutsACFC4632Eppt These two methods may be successfully employed independently or together reinforcing the skill of linking facts to holdings

To persuade with precedent legal writers must compare and contrast the specific facts of the current controversy with those of relevant cases The details make the connection ldquomanifestrdquo and persuade the reader of the justice of applying the holding of the prior case to the current controversy Through targeted classroom exercises students can be taught this important skill regregregregreg

THE SECOND DRAFT 10

14 THE SECOND DRAFT

at wwwstartribunecom click on ldquoopinionrdquothen click on ldquoarguments through theagesrdquo or try wwwstartribunecomstories1519

3 Examining advertisements inthe popular media for audienceanalysis

Another method of examiningpersuasion in terms of shaping messageto audience is to have students look foradvertisements for the same product indifferent publications The same beer forexample may be marketed one way for thereadership of Sports Illustrated and quite adifferent way for the readership of TimeBy analyzing the characteristics of theaudience and looking at the ways that thesame ldquofactsrdquo are shaped to the perceivedneeds and interests of the variousaudiences students begin to see how blackand white shades into gray and how truthcan have more than one look

4 Playing out a scenario andinterpreting the facts

This exercise requires a bit oftheatrical skill and a collaborator Sketchout a scenario with your partner (perhapsa teaching assistant or another facultymember or an administrative assistant) inwhich the two of you have some kind ofbrief altercation or interaction or attention-grabbing discussion near the beginning ofclass (For the less bold you could choosenot to participate yourself and have theinteraction occur between two others) Actout the event

Then tell the students to write a briefstatement of what just occurred startingwith a thesis sentence and supporting itwith a narrative argument based on whatthey just saw Students are amazed that thesame event can be interpreted in so manyways which then leads to good discussionsof how an attorney can look at the samefacts that another attorney looks at yet see(or create) a totally different meaning

5 Looking at memorablepublished opinions

Each of us has read hundreds if notthousands of judicial opinions Whichones do you remember and why Takethose opinions and use them Readingthe words of a dissenting justice whocompares himself to John the Baptistmdash

as a voice crying out in the wildernessmdashcan open a discussion about thepossibilities and limits of simile ANDappropriate boundaries and how theymight differ depending on both thewriter and the audience Opinions whosefactual recitations contain legal lyinsignificant infor mation solely tomanipulate or persuade the audience canbe a powerful example of how specificdetail or visual imagery or unadornedfact can first stun and then remain witha reader for years

If you teach an upper-level courseask each student to choose an opinionthat he or she found memorable analyzewhy and share it with the rest of the classBetter yet have the students exchangeopinions and try to identify what ldquoworksrdquoin each opinion Do the same opinionsappeal to most of the class for the samereasons Trying to identify whatpersuasive devices work for groups andwhich ones are more individualized willgive the students a better sense of thechallenges they face as persuasive writers

By using these small exercises youcan help students to see the possibilitiesof persuasion as they consider messageaudience writer and purpose

Five Simple Exercises(continued from page 13)

Professor Karon Bowdre Confirmed asUS District Judge

News of publicationspromotions programchanges or upcomingconferences and meetingscan be sent throughout theyear Please e-mail news tobbusharilawfsuedu or topatricklclarkedu

Please make sure all of your legalwriting colleagues are getting TheSecond Draft by filling out the couponon the back page or by e-mailinglwiaddresseslawfsuedu Addressinformation sent to that e-mail address isforwarded to the editors of The SecondDraft and to Lori Lamb LWIProgram Assistant Seattle University

If your contact information or e-mailaddress has changed please send updatedinformation It is crucial that LoriLamb have your current e-mail addressto ensure that you are properly subscribedto the legal writing listserve

regregregregreg

Professor Karon O Bowdre (CumberlandSchool of Law) was confirmed as a USDistrict Judge for the Northern Districtof Alabama in November 2001

Judge Bowdr e had been on theCumberland faculty since 1990 and servedas the Director of Legal Writing thereBefore joining the faculty she was a partnerin the Birmingham AL firm of Rivesamp Peterson A cum laude graduate ofSamford University and CumberlandSchool of Law she clerked for USDistrict Judge J Foy Guin Jr beforeentering private practice

remind students to begin by introducing their client to the court and to tell the story of the events leading to the lawsuit from their cl ient rsquos perspective I generally pass out to students plastic overhead transparencies and pens for writing on them so that we can review their drafts from the overheads (If you have access to an Elmo projector you can simply have students draft on paper and then project studentsrsquo papers)

Students can do a fairly good job on the first part of this exercise in about 20-25 minutes While the whole exercise could be completed in one class hour I general ly have students write the exercise in the last part of one class and then we review and discuss selected results together in the next class The interim period allows me time to review the results and to pick out those examples that provide the greatest basis for discussion Usually four examples for plaintiff and four for defendant are sufficient to show the contrast between the stories of plaintiff and defendant For example the last time I did this exercise one student writing for the defendant Widget Corp presented her client in this manner

Founded in 1910 Widget an iron- and steel-producing corporation is a leader in worker safety To enhance on-the-job safety Widget has voluntarily adopted safety measures beyond those required by state and federal law Widget has a great safety record in that the death of Plaintiff rsquos decedent was the most serious accident since 1986

A student writing for the plaintiff portrayed Widget differently

Mr Groversquos death was the thirteenth at the factory in the last 25 years Widget though instigating new safety measures after a large industrial accident in 1976 has still been plagued by serious accidents at the foundry The last two such accidents occurred shortly after Widget was acquired by an international conglomerate

The exercise also enables the class to discuss various characterizations and uses of the same facts It is usually easy to find one example that simply advances facts without any attempt at characterization or ldquospinrdquo and another example written from the same perspective that illustrates how

to present facts with an emphasis that favors the writerrsquos position

For the most part students seem to understand and retain the points about fact writing developed through the exercise I think that this is because they are actively engaged in writing and they are working with a familiar factual scenario (even if the memory of the problem and law has somewhat faded over time) They have the added benefit of evaluating classmatesrsquo efforts from the perspective of having grappled with the same choices themselves Once students understand how it is possible to tell the same story from different perspectives and with different emphases they are usually capable of doing a good job with the Facts section of a brief regregregregreg

Teaching Students to Utilize the Facts Section Ken Swift (Hamline University School of Law)

When I began teaching second semester persuasion I focused almost exclusively on legal analysis As time has gone on however I have focused more and more on the presentation of the facts The powers of perception omission and word choice are particularly important for effective fact statements and so I focus on these aspects of presentation

The reality is that often the law is not in dispute particularly at the trial court level and the task before the judge is to apply the law to the facts The most important thing at that point is the judgersquos perception of the facts For example if you are arguing an illegal search motion the judge is going to have his or her own definition of an illegal search The only question is whether the judge perceives that the facts equate to an illegal search

Therefore one of the first aspects of presenting facts persuasively is a sense of perspective Every client has a perspective on what occurred to create the conflict

leading to litigation It is the attorneyrsquos job to make the reader understand how the case unfolded from his or her clientrsquos perspective The attorney must ldquohumanizerdquo the client even if it is a big corporation and in most cases illustrate how the client acted reasonably Often this will mean starting the facts at a place other than the main conflict

A helpful vehicle for discussing perspective is assigning students to write the facts section for the case of The Three Bears v Goldilocks where the Three Bears are suing Goldilocks for trespass and conversion and she is asserting a defense of necessity1 I divide the class in half and assign a client to each half with instructions to write the facts from the perspective of their clients The students hand in the assignment at the beginning of the next class and I read a few of the submissions aloud Invariably we have stories of a frightened cold and hungry girl searching for shelter contrasting with stories of a bear family whose peaceful family home was forever disrupted by an intruder I then lead a discussion about the perspective that each client has in the studentsrsquo appellate brief problem

Another aspect of presenting facts persuasively is the power of omission A readerrsquos perception of what occurred is shaped by what the reader both knows and does not know A wonderful example of the power of omission can be found in Walker v City of Birmingham 388 US 308 (1967) and Shuttleswor th v City of Birmingham 394 US 149 (1969) two decisions that evolved out of the same civil rights protest and were written by the same person Justice Stewart2 Reading the facts sections of these two cases gives the students a sense of two very different marches one unruly (Walker) and one peaceful (Shuttlesworth) a result of omitted facts For example in Walker the court notes that the march was accompanied by 1000-1500 onlookers who were ldquoclapping and hollering and whoopingrdquo while the Shuttlesworth opinion only notes that there were spectators but not the number On the other hand the Shuttlesworth opinion begins by noting that the marchers were led out of a church by three ministers while the Walker opinion never mentions the church or the ministers

THE SECOND DRAFT 11

THE SECOND DRAFT 13

Social Justiceand PersuasionClifford S Zimmerman (Northwestern UniversitySchool of Law)

I integrate issues of social justice into myteaching of persuasion to heighten thecontext in which students learn thetechnique The topic triggers addedemotional energy on the part of thestudents who then immerse themselvesinto the research organization argumentconstruction and persuasive presentationwith great enthusiasm and vigor Withtheir work self-motivating I can focus onrhetorical technique In the end (after twobriefs and a moot court) the students areamazed at how much they learned andaccomplished and how much fun they hadin the process

Years ago I merely integrated an issueof social justice (eg police brutality the

Gulf War spousal abuse and policeprotection medicinal use of marijuanaor abortion) into the briefing To meldquosocial justicerdquo includes a range of ideassuch as issues of race gender ethnicityclass power or sexual preference Whilethis had positive results I realized that Iwas not utilizing the full potential byadequately preparing the students toaddress the issue Thus I startedcollecting and assigning non-legalreadings (anywhere from six to twelvearticles or book chapters) for them to read

in advance of my assigning the problemThese articles divide on the issue and arerich in citations to other sources bothlegal and non-legal that can be used inwriting the brief

I ask the students then to write areflective essay on the subject I expresslytell them that I do not want a recountingor synthesis of the sources but rather anessay on their thoughts on the subjectmatter (They do not know typically whata reflective essay is so some direction hereis necessary) Writing this essay pushesthem to read the sources and to think aboutthe subject These are submittedanonymously (unless the students want tobe known) and ungraded The papers tendto show good insight into the issue and aclear position on their part Further itreintroduces them to writing in a non-legalcontext and jump starts the creativeprocess I then give them the appellatebrief assignment

I have done this with severalproblems using topics such as affirmativeaction and consumerism As opposed toyears before I assigned readings myexperience has been that the readings andessays add new depth and understandingto the studentsrsquo legal analysis andarguments in the briefs Typically thestudents complain bitterly about theamount of additional reading but I seethat their conversations arguments andbriefs are significantly better as a resultRecently the problem addressedhomelessness and free expression but Idid not gather any readings That year the

essays were flat simplistic and immaturethe briefs were superficial and failed tomake any use of insights particular to theissue

From the implementationperspective time is a major concern hereIt takes time to find an issue like this timeto collect readings time for students toread the materials in advance of theassignment and time for any additionalresearch But as with many things in ourprofession time sowed leads to a greatyield

Non-legal readings on issues of social justice add new depth and understandingto the studentsrsquo legal analysis and arguments in the briefs while writingreflective essays jump-starts the creative process

grow and develop as future lawyers Thishelps students at all levels students whohave done well see how they can improveand those who were struggling recognizethat they can master writing and analysisDo students groan about having to revisitthe minimum contacts cases Yes but atthe end of the semester those studentsalso note that these exercises helped themreally start to ldquogetrdquo what it means topersuade

Five SimpleExercises forTeachingPersuasionNancy Soonpaa (Texas Tech University Schoolof Law)

These simple exercises for teachingpersuasion take less than a class periodeach yet convey powerful and concretelessons about persuasion

1 First class of the semesterAs an introductory exercise ask the

students to pair up and elicit the followinginformation from each other nameundergraduate school or major or recentjob experience and interesting informationthat justifies each personrsquos being a memberof that yearrsquos class Then have the studentsintroduce each other to the rest of theclass including an explanation of whateach person will add to that classmdashwhatexperience or insight he or she will bringThis simple exercise introduces thestudents to interviewing and to advocacyas they persuade the rest of the class ofeach personrsquos worth and potential forcontribution It teaches them abouteliciting facts and then shaping those factsinto a message that will appeal to theaudiencemdashboth the rest of the class andthe professormdashwhile considering theinterests and concerns of the ldquoclientrdquo

2 Examining oral advocacy viafamous speeches

Many of the rhetorical devices usedin well-known speeches throughout theages can be used in written persuasion aswell Reading those speechesmdashout loudas well as silentlymdashand talking about thedevices gives students insight into whatword patterns make them respond bothintellectually and emotionally to apersuasive message One excellent exampleis Martin Luther King Jrrsquos ldquoI Have ADreamrdquo speech its powerful persistentpatterns and insistent imagery are easy forstudents to identify and discuss For otherexamples look to the Minneapolis StarTribune which has published a series ofgreat speeches The speeches are available

regregregregreg

Utilize the Facts (continued from page 11)

In determining which facts to omit and in writing the facts in general I caution students to remember their ethical duty of candor and to be concerned with their credibility as advocates Students readily understand that they cannot lie to the court but must be taught that they cannot portray something as a fact unless it can be cited from the record Students must learn that both the arguments and the advocate are judged as a whole and a judgersquos perception that an attorney is being less than candid in one area will affect the credibility of the attorneyrsquos arguments When determining which facts to omit I have my students imagine this question from a judge ldquoYour opponent has argued that fact X is important Why have you not included itrdquo If the student can reasonably answer the question with ldquoFact X is not relevant because rdquo then the fact is properly omitted The credibility line is difficult to draw and depends upon each case and advocate I do not penalize students for crossing the line unless I feel they have done so by a significant margin

A final aspect of persuasion is word choice I ask my students to select the action verbs in the facts section carefully choosing unusual verbs for emphasis For example an attorney wanting to emphasize the significance of an automobile accident may write that one vehicle ldquosmashedrdquo or ldquoplowed intordquo the other while opposing counsel may write that the vehicles simply ldquocollidedrdquo

An exercise I utilize to emphasize verb choice is to give the students several sentences describing various legal situations with a verb underlined in each sentence I ask the students working in groups to think up as many alternative action verbs as possible and rewrite the sentences I usually combine this exercise with exercises dealing with other aspects of writing the facts such as using greater detail to emphasize favorable facts and placing key facts at the ends of sentences3

The bottom line is that unless the facts are not in dispute and the issue is purely legal how the court perceives the facts will be critical Students need to learn that part of their job is to tell a story and that story must be their clientrsquos story regregregregreg

1 For a lengthier example of the ldquoGoldilocksrdquo hypothetical see Steven V Armstrong amp Timothy P Terrell Organizing Facts to Tell Stories 9 Perspectives 90 90-91 (Winter 2001) 2 This example is drawn from a LWI conference presentation by Julie Spanbauer (John Marshall) later published in Teaching First-Semester Students that Objective Analysis Persuades 5 Legal Writing 167 178-185 (1999) 3 Several of these techniques are highlighted in Louis J Sirico Persuasive Writing for Lawyers and the Legal Profession (Matthew Bender amp Co 1995)

Using a Civil Procedure Exam Question to Teach Persuasion Sophie Sparrow (Franklin Pierce Law Center)

Because studies show that learners master new material more effectively when it builds upon what they already know we reuse material from the fall semester to teach persuasion in the spring By revisiting an assignment students can focus their efforts on persuading rather than learning new doctrine or facts Turning a predictive discussion into a persuasive argument also

Turning a predictive discussion into a persuasive argument also demonstrates that making an argument requires the same rigorous thinking as predicting a result

demonstrates that making an argument requires the same rigorous thinking as predicting a result One way we do this is by assigning students to write an argument based on their fall Civil Procedure exam

At the beginning of the spring semester we introduce some general principles of persuasive writing and then

spend the next few weeks working on arguments about personal jurisdiction Using the facts from studentsrsquo Civil Procedure exam and the cases from their text students argue that their client does not have the necessary minimum contacts for jurisdiction over an out-of-state defendant

Working in small groups during class students compare their matrices of the cases outline and draft components of the arguments and read and critique their classmatesrsquo drafts At several times during this module students also e-mail professors current versions of their arguments From these we make composites that illustrate particular techniques such as organizing for persuasiveness using authorities making policy arguments and refuting counter-arguments We also use these composites to illustrate common problems students encounter Students read the composites on overheads diagnosing the troublesome areas and identifying strategies to make the writing more persuasive

This exercise has several benefits in addition to allowing students to concentrate on the skill of persuasion One is that revisiting material builds studentsrsquo analytical skills and understanding of Civil Procedure From talking to our Civil Procedure colleague we know what she emphasized in class how students analyzed the material on their exams and where students need additional coaching By working through the material collaboratively over several classes students develop more sophisticated approaches to arguing the minimum contacts rules than they showed in their exams and communicate those arguments more effectively In the process students also learn that the art of persuasion is not about ldquotellingrdquo but ldquoshowingrdquo why the requested result should be followed

Another benefit to this approach is that it increases student confidence As they rework the same material a month after the exam students recognize where they need to sharpen their writing and organizational skills Students also begin to realize that they are now identifying arguments analogies and issues in a way that had been invisible before By calling their attention to this we help them see their progress and continued capacity to

THE SECOND DRAFT 12

12 THE SECOND DRAFT

spend the next few weeks working onarguments about personal jurisdictionUsing the facts from studentsrsquo CivilProcedure exam and the cases from theirtext students argue that their client doesnot have the necessary minimum contactsfor jurisdiction over an out-of-statedefendant

Working in small groups during classstudents compare their matrices of thecases outline and draft components of thearguments and read and critique theirclassmatesrsquo drafts At several times duringthis module students also e-mailprofessors current versions of theirarguments From these we makecomposites that illustrate particulartechniques such as organizing forpersuasiveness using authorities makingpolicy arguments and refuting counter-arguments We also use these compositesto illustrate common problems studentsencounter Students read the compositeson overheads diagnosing the troublesomeareas and identifying strategies to make thewriting more persuasive

This exercise has several benefits inaddition to allowing students toconcentrate on the skill of persuasion Oneis that revisiting material builds studentsrsquoanalytical skills and understanding of CivilProcedure From talking to our CivilProcedure colleague we know what sheemphasized in class how students analyzedthe material on their exams and wherestudents need additional coaching Byworking through the materialcollaboratively over several classesstudents develop more sophisticatedapproaches to arguing the minimumcontacts rules than they showed in theirexams and communicate those argumentsmore effectively In the process studentsalso learn that the art of persuasion is notabout ldquotellingrdquo but ldquoshowingrdquo why therequested result should be followed

Another benefit to this approach isthat it increases student confidence Asthey rework the same material a monthafter the exam students recognize wherethey need to sharpen their writing andorganizational skills Students also beginto realize that they are now identifyingarguments analogies and issues in a waythat had been invisible before By callingtheir attention to this we help them seetheir progress and continued capacity to

In determining which facts to omitand in writing the facts in general I cautionstudents to remember their ethical duty ofcandor and to be concerned with theircredibility as advocates Students readilyunderstand that they cannot lie to thecourt but must be taught that they cannotportray something as a fact unless it canbe cited from the record Students mustlearn that both the arguments and theadvocate are judged as a whole and ajudgersquos perception that an attorney is beingless than candid in one area will affect thecredibility of the attorneyrsquos argumentsWhen determining which facts to omit Ihave my students imagine this questionfrom a judge ldquoYour opponent has arguedthat fact X is important Why have you notincluded itrdquo If the student can reasonablyanswer the question with ldquoFact X is notrelevant because rdquo then the fact isproperly omitted The credibility line isdifficult to draw and depends upon eachcase and advocate I do not penalizestudents for crossing the line unless I feelthey have done so by a significant margin

A final aspect of persuasion is wordchoice I ask my students to select theaction verbs in the facts section carefullychoosing unusual verbs for emphasis Forexample an attorney wanting to emphasizethe significance of an automobile accidentmay write that one vehicle ldquosmashedrdquo orldquoplowed intordquo the other while opposingcounsel may write that the vehicles simplyldquocollidedrdquo

An exercise I utilize to emphasize verbchoice is to give the students severalsentences describing various legalsituations with a verb underlined in eachsentence I ask the students working ingroups to think up as many alternativeaction verbs as possible and rewrite thesentences I usually combine this exercisewith exercises dealing with other aspectsof writing the facts such as using greaterdetail to emphasize favorable facts andplacing key facts at the ends of sentences3

The bottom line is that unless the factsare not in dispute and the issue is purelylegal how the court perceives the facts willbe critical Students need to learn that partof their job is to tell a story and that storymust be their clientrsquos story

1 For a lengthier example of the ldquoGoldilocksrdquohypothetical see Steven V Armstrong amp TimothyP Terrell Organizing Facts to Tell Stories9 Perspectives 90 90-91 (Winter 2001)2 This example is drawn from a LWI conferencepresentation by Julie Spanbauer (John Marshall)later published in Teaching First-SemesterStudents that Objective AnalysisPersuades 5 Legal Writing 167 178-185(1999)3 Several of these techniques are highlighted inLouis J Sirico Persuasive Writing forLawyers and the Legal Profession (MatthewBender amp Co 1995)

Using a CivilProcedureExamQuestion toTeachPersuasionSophie Sparrow (Franklin Pierce Law Center)

Because studies show that learners masternew material more effectively when itbuilds upon what they already know wereuse material from the fall semester toteach persuasion in the spring By revisitingan assignment students can focus theirefforts on persuading rather than learningnew doctrine or facts Turning a predictivediscussion into a persuasive argument also

demonstrates that making an argumentrequires the same rigorous thinking aspredicting a result One way we do this isby assigning students to write an argumentbased on their fall Civil Procedure exam

At the beginning of the springsemester we introduce some generalprinciples of persuasive writing and then

Turning a predictive discussion into apersuasive argument also demonstratesthat making an argument requires thesame rigorous thinking as predictinga result

Utilize the Facts(continued from page 11)

regregregregreg

grow and develop as future lawyers This helps students at all levels students who have done well see how they can improve and those who were struggling recognize that they can master writing and analysis Do students groan about having to revisit the minimum contacts cases Yes but at the end of the semester those students also note that these exercises helped them really start to ldquogetrdquo what it means to persuade regregregregreg

Social Justice and Persuasion Clifford S Zimmerman (Northwestern University School of Law)

I integrate issues of social justice into my teaching of persuasion to heighten the context in which students learn the technique The topic triggers added emotional energy on the part of the students who then immerse themselves into the research organization argument construction and persuasive presentation with great enthusiasm and vigor With their work self-motivating I can focus on rhetorical technique In the end (after two briefs and a moot court) the students are amazed at how much they learned and accomplished and how much fun they had in the process

Years ago I merely integrated an issue of social justice (eg police brutality the

in advance of my assigning the problem These articles divide on the issue and are rich in citations to other sources both legal and non-legal that can be used in writing the brief

I ask the students then to write a reflective essay on the subject I expressly tell them that I do not want a recounting or synthesis of the sources but rather an essay on their thoughts on the subject matter (They do not know typically what a reflective essay is so some direction here is necessary) Writing this essay pushes them to read the sources and to think about the subject These are submitted anonymously (unless the students want to be known) and ungraded The papers tend to show good insight into the issue and a clear position on their part Further it reintroduces them to writing in a non-legal context and jump starts the creative process I then give them the appellate brief assignment

I have done this with several problems using topics such as affirmative action and consumerism As opposed to years before I assigned readings my experience has been that the readings and essays add new depth and understanding to the studentsrsquo legal analysis and arguments in the briefs Typically the students complain bitterly about the amount of additional reading but I see that their conversations arguments and briefs are significantly better as a result Recently the problem addressed homelessness and free expression but I did not gather any readings That year the

Non-legal readings on issues of social justice add new depth and understanding to the studentsrsquo legal analysis and arguments in the briefs while writing reflective essays jump-starts the creative process

Gulf War spousal abuse and police protection medicinal use of marijuana or abortion) into the briefing To me ldquosocial justicerdquo includes a range of ideas such as issues of race gender ethnicity class power or sexual preference While this had positive results I realized that I was not utilizing the full potential by adequately preparing the students to address the issue Thus I started collecting and assigning non-legal readings (anywhere from six to twelve articles or book chapters) for them to read

essays were flat simplistic and immature the briefs were superficial and failed to make any use of insights particular to the issue

From the implementation perspective time is a major concern here It takes time to find an issue like this time to collect readings time for students to read the materials in advance of the assignment and time for any additional research But as with many things in our profession time sowed leads to a great yield regregregregreg

Five Simple Exercises for Teaching Persuasion Nancy Soonpaa (Texas Tech University School of Law)

These simple exercises for teaching persuasion take less than a class period each yet convey powerful and concrete lessons about persuasion

1 First class of the semester As an introductory exercise ask the

students to pair up and elicit the following information from each other name undergraduate school or major or recent job experience and interesting information that justifies each personrsquos being a member of that yearrsquos class Then have the students introduce each other to the rest of the class including an explanation of what each person will add to that classmdashwhat experience or insight he or she will bring This simple exercise introduces the students to interviewing and to advocacy as they persuade the rest of the class of each personrsquos worth and potential for contribution It teaches them about eliciting facts and then shaping those facts into a message that will appeal to the audiencemdashboth the rest of the class and the professormdashwhile considering the interests and concerns of the ldquoclientrdquo

2 Examining oral advocacy via famous speeches

Many of the rhetorical devices used in well-known speeches throughout the ages can be used in written persuasion as well Reading those speechesmdashout loud as well as silentlymdashand talking about the devices gives students insight into what word patterns make them respond both intellectually and emotionally to a persuasive message One excellent example is Martin Luther King Jrrsquos ldquoI Have A Dreamrdquo speech its powerful persistent patterns and insistent imagery are easy for students to identify and discuss For other examples look to the Minneapolis Star Tribune which has published a series of great speeches The speeches are available

THE SECOND DRAFT 13

THE SECOND DRAFT 11

remind students to begin by introducingtheir client to the court and to tell thestory of the events leading to the lawsuitfrom their cl ient rsquos perspective Igenerally pass out to students plasticoverhead transparencies and pens forwriting on them so that we can reviewtheir drafts from the overheads (If youhave access to an Elmo projector youcan simply have students draft on paperand then project studentsrsquo papers)

Students can do a fairly good jobon the first part of this exercise in about20-25 minutes While the whole exercisecould be completed in one class hour Igeneral ly have students write theexercise in the last part of one class andthen we review and discuss selectedresults together in the next class Theinterim period allows me time to reviewthe results and to pick out thoseexamples that provide the greatest basisfor discussion Usually four examples forplaintiff and four for defendant aresufficient to show the contrast betweenthe stories of plaintiff and defendantFor example the last time I did thisexercise one student writing for thedefendant Widget Corp presented herclient in this manner

Founded in 1910 Widget an iron- and steel-producing corporation is a leader in worker safetyTo enhance on-the-job safety Widget hasvoluntarily adopted safety measures beyond thoserequired by state and federal law Widget has agreat safety record in that the death of Plaintiff rsquosdecedent was the most serious accident since 1986

A student writing for the plaintiffportrayed Widget differently

Mr Groversquos death was the thirteenth at thefactory in the last 25 years Widget thoughinstigating new safety measures after a largeindustrial accident in 1976 has still been plaguedby serious accidents at the foundry The last twosuch accidents occurred shortly after Widget wasacquired by an international conglomerate

The exercise also enables the class todiscuss various characterizations and usesof the same facts It is usually easy to findone example that simply advances factswithout any attempt at characterization orldquospinrdquo and another example written fromthe same perspective that illustrates how

TeachingStudents toUtilize the FactsSectionKen Swift (Hamline University School of Law)

When I began teaching second semesterpersuasion I focused almost exclusively onlegal analysis As time has gone onhowever I have focused more and moreon the presentation of the facts Thepowers of perception omission and wordchoice are particularly important foreffective fact statements and so I focuson these aspects of presentation

The reality is that often the law is notin dispute particularly at the trial courtlevel and the task before the judge is toapply the law to the facts The mostimportant thing at that point is the judgersquosperception of the facts For example if youare arguing an illegal search motion thejudge is going to have his or her owndefinition of an illegal search The onlyquestion is whether the judge perceivesthat the facts equate to an illegal search

Therefore one of the first aspects ofpresenting facts persuasively is a sense ofperspective Every client has a perspectiveon what occurred to create the conflict

leading to litigation It is the attorneyrsquos jobto make the reader understand how thecase unfolded from his or her clientrsquosperspective The attorney mustldquohumanizerdquo the client even if it is a bigcorporation and in most cases illustratehow the client acted reasonably Often thiswill mean starting the facts at a place otherthan the main conflict

A helpful vehicle for discussingperspective is assigning students to writethe facts section for the case of The ThreeBears v Goldilocks where the Three Bearsare suing Goldilocks for trespass andconversion and she is asserting a defenseof necessity1 I divide the class in half andassign a client to each half with instructionsto write the facts from the perspective oftheir clients The students hand in theassignment at the beginning of the nextclass and I read a few of the submissionsaloud Invariably we have stories of afrightened cold and hungry girl searchingfor shelter contrasting with stories of abear family whose peaceful family homewas forever disrupted by an intruder I thenlead a discussion about the perspective thateach client has in the studentsrsquo appellatebrief problem

Another aspect of presenting factspersuasively is the power of omission Areaderrsquos perception of what occurred isshaped by what the reader both knows anddoes not know A wonderful example ofthe power of omission can be found inWalker v City of Birmingham 388 US 308(1967) and Shuttleswor th v City ofBirmingham 394 US 149 (1969) twodecisions that evolved out of the same civilrights protest and were written by the sameperson Justice Stewart2 Reading the factssections of these two cases gives thestudents a sense of two very differentmarches one unruly (Walker) and onepeaceful (Shuttlesworth) a result of omittedfacts For example in Walker the courtnotes that the march was accompanied by1000-1500 onlookers who were ldquoclappingand hollering and whoopingrdquo while theShuttlesworth opinion only notes that therewere spectators but not the number Onthe other hand the Shuttlesworth opinionbegins by noting that the marchers wereled out of a church by three ministerswhile the Walker opinion never mentionsthe church or the ministers

to present facts with an emphasis thatfavors the writerrsquos position

For the most part students seem tounderstand and retain the points aboutfact writing developed through theexercise I think that this is because theyare actively engaged in writing and theyare working with a familiar factualscenario (even if the memory of theproblem and law has somewhat fadedover time) They have the added benefitof evaluating classmatesrsquo efforts fromthe perspective of having grappled withthe same choices themselves Oncestudents understand how it is possibleto tell the same story from differentperspectives and with differentemphases they are usually capable ofdoing a good job with the Facts sectionof a brief regregregregreg

Five Simple Exercises (continued from page 13)

at wwwstartribunecom click on ldquoopinionrdquo then click on ldquoarguments through the agesrdquo or try wwwstartribunecomstories 1519

3 Examining advertisements in the popular media for audience analysis

Another method of examining persuasion in terms of shaping message to audience is to have students look for advertisements for the same product in different publications The same beer for example may be marketed one way for the readership of Sports Illustrated and quite a different way for the readership of Time By analyzing the characteristics of the audience and looking at the ways that the same ldquofactsrdquo are shaped to the perceived needs and interests of the various audiences students begin to see how black and white shades into gray and how truth can have more than one look

4 Playing out a scenario and interpreting the facts

This exercise requires a bit of theatrical skill and a collaborator Sketch out a scenario with your partner (perhaps a teaching assistant or another faculty member or an administrative assistant) in which the two of you have some kind of brief altercation or interaction or attention-grabbing discussion near the beginning of class (For the less bold you could choose not to participate yourself and have the interaction occur between two others) Act out the event

Then tell the students to write a brief statement of what just occurred starting with a thesis sentence and supporting it with a narrative argument based on what they just saw Students are amazed that the same event can be interpreted in so many ways which then leads to good discussions of how an attorney can look at the same facts that another attorney looks at yet see (or create) a totally different meaning

5 Looking at memorable published opinions

Each of us has read hundreds if not thousands of judicial opinions Which ones do you remember and why Take those opinions and use them Reading the words of a dissenting justice who compares himself to John the Baptistmdash

as a voice crying out in the wildernessmdash can open a discussion about the possibilities and limits of simile AND appropriate boundaries and how they might differ depending on both the writer and the audience Opinions whose factual recitations contain legal ly insignificant infor mation solely to manipulate or persuade the audience can be a powerful example of how specific detail or visual imagery or unadorned fact can first stun and then remain with a reader for years

If you teach an upper-level course ask each student to choose an opinion that he or she found memorable analyze why and share it with the rest of the class Better yet have the students exchange opinions and try to identify what ldquoworksrdquo in each opinion Do the same opinions appeal to most of the class for the same reasons Trying to identify what persuasive devices work for groups and which ones are more individualized will give the students a better sense of the challenges they face as persuasive writers

By using these small exercises you can help students to see the possibilities of persuasion as they consider message audience writer and purpose regregregregreg

Please make sure all of your legal writing colleagues are getting The Second Draft by filling out the coupon on the back page or by e-mailing lwiaddresseslawfsuedu Address information sent to that e-mail address is forwarded to the editors of The Second Draft and to Lori Lamb LWI Program Assistant Seattle University

If your contact information or e-mail address has changed please send updated information It is crucial that Lori Lamb have your current e-mail address to ensure that you are properly subscribed to the legal writing listserve

News of publications promotions program changes or upcoming conferences and meetings can be sent throughout the year Please e-mail news to bbusharilawfsuedu or to patricklclarkedu

Professor Karon Bowdre Confirmed as US District Judge

Professor Karon O Bowdre (Cumberland School of Law) was confirmed as a US District Judge for the Northern District of Alabama in November 2001

Judge Bowdr e had been on the Cumberland faculty since 1990 and served as the Director of Legal Writing there Before joining the faculty she was a partner in the Birmingham AL firm of Rives amp Peterson A cum laude graduate of Samford University and Cumberland School of Law she clerked for US District Judge J Foy Guin Jr before entering private practice

THE SECOND DRAFT 14

10 THE SECOND DRAFT

the actual holdings of precedent casesInstead they generalize both the facts ofthe cases and the legal rules which resultsin presentations that are both unpersuasiveand uninteresting

Benjamin Franklin wrote in ThePennsylvania Gazette in 1773 that if a writerwishes to persuade

(H)e should proceed gradually fromThings already allowrsquod to those fromwhich Assent is yet with-held andmake their Connection manifest If hewould inform he must advanceregularly from Things known to thingsunknown distinctly withoutConfusion and the lower he beginsthe betterDr Franklinrsquos advice remains valuable

today especially for lawyers A legal writershould first state what is known ie thefacts of the precedential case and establisha clear connection to the facts of thecurrent controversy The greater thesimilarity of relevant facts the clearer theconnection between the earlier case andthe current fact pattern

To persuade then a legal writer shouldproffer to the reader viscerally memorablefacts instead of bland forgettableparaphrasing If the defendant in a casewas an ldquoestablished pathologist withprivileges at six area hospitalsrdquo say sorather than refer to her only as ldquoa medicalprofessionalrdquo In discussing a case in whicha grocery clerk told a customer ldquoIf youwant to know the price go look foryourself You stink to merdquo the studentshould quote the offensive language ratherthan merely stating ldquoa company employeeinsulted a customerrdquo

After offering memorable facts thestudent should clearly show how the factsof the precedential case are connected tothose of the current case Thus in discussingthe claim of a mentally retarded man forintentional infliction of emotional distressa student should explain the plaintiff rsquosretardation Where the plaintiff in an earlierIIED case was a child rather than merelyreferring to her as ldquoa minorrdquo the writershould make clear that the plaintiff was ldquoasix-year-old girlrdquo Most importantly thewriter should link the traits of both plaintiffsmaking clear the connection between the

two ldquoJust as the plaintiff in the earlier casewas an innocent six-year-old girl the plaintiffhere has the IQ of an eight year old Andjust as the young girl was in her home alonewhen the adult defendant unexpectedlycame to her house and harassed her theretarded plaintiff in the present case wasalone in the front yard of his group homewhen the defendant insurance agentattempted to persuade the plaintiff to cancelhis disability coveragerdquo As a final exampleif a court enunciated a three-part test forliability that test should be impartedverbatim and the writer should show howthe facts of the current controversy eitherfit or diverge from each part rather thanmerely concluding to the mystified readerthat the facts in the current case do not satisfythe test

How does one teach students topersuasively communicate precedent Twomethods can be used Students can analyzea family of real cases detecting the legallysignificant facts and relating them to thespecific holdings of the cases This teachesskills in spotting and characterizingimportant elements that might be

Persuade with Precedent(continued from page 9) Just the Facts

Sharon Pocock (Quinnipiac University School ofLaw)

Teaching persuasive writing through shortexercises such as those found in legalwriting texts can be difficult preciselybecause students donrsquot know the lawinvolved in detail and thus may not realizewhat facts need to be emphasized ordownplayed Another difficulty is thattextbook exercises that are multiple choicein form put students in a passive ratherthan an active role Instead I do an in-class exercise that while short actuallyobliges students to write themselves Thisgives the students practice in applyingpersuasive techniques and enables the classas a group to evaluate different ways ofpresenting the same facts

concealed in a multi-layered array of factsThe instructor can then elicit those factsthat are similar to or vary from theoperative facts of the case at issue

The second method presents thestudents with a ldquono-frillsrdquo exercisecontaining the facts and holdings of twoor three simple cases Students are askedto compare the facts and ruling in eachsituation to those in a hypothetical caseReaders may access an example Iconstructed at wwwavemarialaweducommunityhandoutsACFC4632EpptThese two methods may be successfullyemployed independently or togetherreinforcing the skill of linking facts toholdings

To persuade with precedent legalwriters must compare and contrast thespecific facts of the current controversywith those of relevant cases The detailsmake the connection ldquomanifestrdquo andpersuade the reader of the justice ofapplying the holding of the prior case tothe current controversy Through targetedclassroom exercises students can be taughtthis important skill regregregregreg

Writing Facts PersuasivelyAnActive-Learning Exercise

For the exercise I choose a problemthat students know from an earlierobjective writing assignment I prepare ahandout that reminds students of thegoverning legal test and that sets up theprocedural history (eg defendant is filinga motion to dismiss challengingsatisfaction of one prong of the test thatgoverns the claim asserted) The remainderof the handout presents discrete factsabout plaintiff and defendant SometimesI add additional facts to those that studentsalready know presenting all facts in a listrather than in paragraph form

All students receive the samehandout but half of them are assignedto write the Facts from the perspectiveof the plaintiff and the other half fromthe perspective of the defendant I

Doing It AllmdashOver Time Steven D Jamar (Howard University School of Law)

Donrsquot try to do it all at once If you have ever attended an ALWD or LWI conference or

if you follow the conversations on the legal writing listserves you could get the impression that everyone else is doing all of the following

1 Scholarship 2 Designing and implementing legal writing and research

curricula 3 Teaching legal writing and research 4 Teaching doctrinal courses 5 Doing outreach to all of the following stakeholders or

interest groups a students b alumni c judges d practitioners e clinicians f doctrinal faculty g administrators (law school) h administrators (university) i legal writing and research program teachers

6 Doing major projects of service to legal writing and research on a national scale

7 Mentoring junior members of LWI or ALWD 8 Hiringsupervising legal writing and research faculty 9 And more

Like a number of my colleagues I have done all of these things and continue to do one or two of themmdashbut I have done them over the course of a dozen years

In my early years I made sure Howard University School of Lawrsquos Legal Reasoning Research and Writing Program (LRRW) was strong I made sure to do my scholarship I did the necessary political work within the law school to keep the program strong and to improve my chances of getting tenure when the time came and I started to make some contacts with the national legal writing community In those years I did more intentional outreach to students faculty and administration than I do now

A bit later I focused heavily on getting tenure and on doing a few things nationally within the legal writing and research community such as presenting at conferences working on program committees and serving on the boards of directors of LWI and ALWD As I assumed a larger leadership role I worked primarily on national organizational structural matters on mentoring other potential leaders and to a much lesser extent on supporting the

national political efforts with respect to changing the ABA standards

More recently I have turned my attention back to the law school and university to get rid of LRRW faculty caps This is an ongoing project and has involved my doing work at the university level to get known by the right administrators

In the past few years I have also worked to write more about my ideas concerning legal writing and research (Most of my prior scholarly works have been on subjects I found quite a bit easier to get a handle on) I have reduced my work at the national level substantially though I am still contributing in some small ways for certain initiatives for which I can offer some fairly special assistance

This year I will focus primarily on programmatic design at Howard University School of Lawmdashthinking about it strategically and working to implement some of the ideas if possible in our curriculum I will also try to write a few more of my ideas about legal writing and research in general for publication in a year or so I will not be doing much outreach and I will not be doing much nationally other than contributing as a member of the ALWD Citation Manual Revision Committee

I cannot do everything None of us can My advice is that you should determine what is most important for you in your situationmdashwhether that is developing your scholarship your teaching your faculty relations or a national profilemdashthen assess your strengths and apply them appropriately Get involved nationally at whatever level you can afford now But do not burn yourself out We need you and your energy and ideas over the long term

A significant reason for the growing clout and professionalization of legal writing and research is the growing number of folk who have been around for a long enough time to learn the ropes and to get in positions to pull levers There is much to be done for our profession at all levels but no one can do it all and certainly no one can do it all at once And none of us need to

2002 LWI Conference University of Tennessee

College of Law Knoxville TN

Wednesday May 29ndash Saturday June 1 2002

THE SECOND DRAFT 15

THE SECOND DRAFT 9

Finally it is persuasive when a brief-writer actually applies the law to the factsof the case being argued after includingenough detail from the reported cases thatthe reader can see the logic of theargument We teach students about ldquoRuleProof rdquo or ldquoRule Explanationrdquo but we mayneed to teach them more about how toexplain their analysis with the Goal andReader in the forefront The argument thatconnects all of the dots for the judge hasa better chance of persuading her

As legal writing instructors we oftenbegin by teaching tried-and-true rulesldquoUse thesis sentences to begin eachparagraph stick to the four-part paradigmavoid the use of passive voicerdquo Whenstudents ask for a ldquorulerdquo for a particularsituation though it may be useful to takea step back and ask ldquowell what wouldmake the most sense in light of the Goaland Readerrdquo The rules we teach providethe framework for persuasion but takingit one step further can give the students amore complete picture Learning about theintended audience can enable students tomaster the principles of effective writingrather than just following the rules

1 Legal Reasoning amp Legal WritingStructure Strategy amp Style 288-289 (4th edAspen L amp Bus 2001)

Ask theAudiencePatricia A Legge (Rutgers School of LawmdashCamden)

I believe students best learn to refine theirwriting by gaining insight into theprinciples behind the rules of legal writingWhen teaching persuasive techniques such

as Richard Neumannrsquos list of fourteenldquoArgumentation Techniquesrdquo1 it isessential that the student also learn moreabout the audience for any givendocument In the case of brief writing thataudience is the court

Recently I conducted a very informalpoll of judges and law clerks at the federalcourthouse across the street from RutgersI asked what persuaded these individualswhen it came to the briefs submitted theresults were in a word comforting As afairly new teacher of legal writing I wascomforted to know that the basics of whatwe teach the students provide a solid

foundation for persuading their eventualaudience The top five responses wereclarity a good introduction an objectivetone technical perfection and explanationof the writerrsquos analysis

Overwhelmingly the judges and lawclerks indicated that they were persuadedby clarity Telling students this should helpthem understand why we harp on suchthings as logical organization and carefulediting Our students are or should beaware of the backlog of cases that todayrsquosjudges face Students should be taught thatit is imperative that their points beconveyed in a single cursory read out ofrespect for the premium that a judgersquos timerepresents

Along those lines the judges look fora good introduction (perhaps just in casethere is not enough of that premium timeto read the entire brief before argument)The principle that the students can derivefrom this is that all readers appreciatecontext before detail The studentsprobably do not begin relating anecdotesto their friends ldquoin the middle of the storyrdquoSimilarly they will better persuade a courtby giving the clientsrsquo arguments somecontext in which to judge them

While providing context is essentialproviding drama is not The judges are oftenwon over by a succinct non-partisan versionof the facts followed by an argument sectioncontaining a spartan use of adjectives andadverbs Students should know that theiraudience has ldquobeen around the blockrdquo a few

times and most judges will reveal that theyhave ldquoheard it allrdquo I tell my students thatthere is a world of difference betweentelevision lawyers playing to a jury and thereal-life lawyers writing briefs for judges

The judges feel strongly that credibilityis enhanced by using flawless citation style(citing cases that actually stand for theproposition advanced) in a brief void ofgrammar or spelling mistakes Students canunderstand the principle that they want tocreate a user-friendly document to sell theirclientrsquos position legal writing teachers canfind comfort that emphasis on details is notin vain

My students are aware that I ldquoteach tothe audiencerdquo I tell them up front that I willbe tinkering with the lesson plan as I learnmore about their needs I have found it givesthe students more incentive to complete theirassignments on time and with a best effortI can use my own actions as an example ofpersuasive technique ldquoWere you persuadedto use more rule explanation after I showedyou a great example and we discussed whyit was so good Yes Well the judge wouldprobably feel the same wayrdquo

I am not advocating catering to everywhim of a class My course still hasrequired reading exercises deadlinesmandatory conferences and drafts withrewrites The boundaries are not going tochange Not everyone is going to get anldquoArdquo either unless everyone deserves anldquoArdquo The studentrsquos appointed goal ofwriting a great brief is still the same goaleach year What can change though is theapproach I take to help studentsaccomplish the goal

Persuade withPrecedentJames P Eyster (Ave Maria School of Law)

The secret to a compelling case-based legalargument is the comparison of the specificfacts of the case being considered to thefacts of precedent cases While studentscan often analyze cases and presentgeneralized conclusions about them theyregularly fail to persuasively apply the samecases to the facts at issue

Even beginning first-year studentsoften show a masterful understanding ofthe meaning and significance of precedentcases a keen ability to synthesize theemerging legal standards and a facility inapplying appropriate standards to the caseat hand These same students howeverroutinely omit both the relevant facts and

Judges like the basics clarity a good introduction an objective tone technicalperfection and explanation of the writerrsquos analysis

regregregregreg

Writing Specialist A Matter of Style Mary Barnard Ray (University of Wisconsin Law School)

Law students who love creative writing often hate legal writing They complain that repeating a word is boring using straightforward transitions is too obvious writing short sentences is childish and omitting unneeded detail makes the story uninteresting In frustration these students declare that legal writing means writing with no personal style The studentsrsquo complaints often seem self-focused and you want to respond Thatrsquos right Wersquore here to do a job not celebrate you But stating that would alienate the student and it would be inaccurate

Personal style exists in legal writing and denying its existence would shortchange the genre Instead we can teach the students to become better writers by recognizing and managing their own styles Memos written by different students on the same topic vary in effect even when students use the same cases legal terms and objective tone The memos

This structure is useful because it is easy to comprehend The sentence presents the structural heart of the sentence first and adds detail later When this structure is used repeatedly however the text becomes less than clear With no introductory phrase to provide a transition the reader has to determine the logical connection between this sentence and the previous one This task slows the reader particularly when the logic is complex

Richard Baxter was killed when he accidentally fell down an elevator shaft He was working at the Acme Toy Company a corporation He had been going about the building to ascertain the quantity of certain items of merchandise kept in stock The elevator door had been left open while the elevator was being repaired Baxter stepped into the shaft and fell four stories

Other students habitually start sentences with introductory phrases

differ despite starting each Personal style exists in legal writing and denying itsparagraph with a thesis and using the same organization They even existence would shortchange the genre Instead we can teach differ though making the same the students to become better writers by recognizing and errors Even with so many managing their own stylessimilarities personal style creates variations in the overall effect of each memo

In legal writing personal style lies predominately in patterns of sentence structure Most student writers have one or two structural habits that mark their personal styles even if they are unaware of the habits Over the course of a document the pattern created by these habits changes the rhythm of the text and affects the way the reader processes the content Subtly the pattern communicates an impression of the writer no-nonsense or elegant focused or wide-ranging in thought These structural patterns are fundamental differences yet are acceptable in legal writing

Each structural pattern however has its limitations successful writers respect those limits They avoid overusing one structure knowing how to craft alternatives If we teach the students to manage their own structural patterns successfully we improve the quality of their writing without sacrificing personal choice or individual style

Four common structural habits appear most often each with its advantages and limitations For example some writers habitually start each sentence with the subject and verb

Summary judgment may be awarded when there is no genuine issue of material fact

Case law has interpreted this statute to exclude officers and directors of a corporation from the meaning of ldquoemployeerdquo

When there is no genuine issue of material fact summary judgment may be awarded

Interpreting this statute case law has held that ldquoemployeerdquo excludes officers and directors of a corporation

When accurately focused introductory phrases clarify the logical flow between sentences and between paragraphs The writer may echo an idea from the previous sentence Applying this theory or After the accident In a thesis sentence the writer may use an introductory phrase to communicate the paragraphrsquos relation to previous paragraphs Unlike other jurisdictions An introductory phrase can create anticipation adding interest to the text For example the following sentence sounds like the beginning of a story

While going about the Acme Toy Company to ascertain the quantity of certain merchandise Richard Baxter fell down an elevator shaft

But when overused introductory phrases create a halting rhythm that sounds less assured particularly when those phrases state caveats Introductory phrases can also remove energy from the text lulling the reader into inattention

In this case the commissionrsquos determination came before the trial court for review under the Uniform Administration Procedure Act Describing items to be considered during review this Act includes ldquoexperience technical competence and specialized knowledge of the agency involved as well as discretionary authority conferred upon itrdquo Regarding the Public Service

THE SECOND DRAFT 16

8 THE SECOND DRAFT

Teach to YourAudienceRuth Anne Robbins (Rutgers School of LawmdashCamden)

We know that the starting point of anypersuasive writing course should be theunderlying principles of legal writing andnot just the rules We remind our studentsto think of the documentrsquos goal and thedocumentrsquos particular reader Weemphasize that the more the student

knows about the reader the more she cantailor her argument to that readerrsquos needsand goals We talk about the differencebetween a trial court reader and anappellate court reader

These ideas are not abstract to us afterall many of us clerked for and practicedin front of different courts We hope thatmost of our students will remember ourlessons as they start their summerinternships or their post-graduationclerkships The trick may be making thelesson more concrete during the actualcourse itself

provided sufficient notice of their claimto the municipality under the applicabletort claims act

Adopting the modeling approach hada variety of benefits It was beneficial tobegin the semester by teaching persuasionwith a model memorandum that fit withinthe context of our fact pattern for thesemester We were able to provide a modelthat complied with both the format andstructure that we wanted our students touse in their memoranda The students wereappreciative

Second this approach allowed us tointroduce persuasive writing incrementallyWe were able to introduce our students topersuasive writing using a straightforwardlegal question Additionally the studentswere able to see how persuasive writingfits within the context of a legal case

Third on the date that we modeledoral argument the students wereencouraged to ask questions regarding theoral argument Students asked candidquestions of the attorneys and the judgeOral argument was made a little lessthreatening to most students When thetime came to prepare our students for theirown oral arguments we were able to referback effectively to the model oralargument

The use of a contextual model toteach persuasion has proven successful inour classes This is an approach that canbe used along with other techniques andexercises to teach persuasion to first-yearlaw students

Know the AudienceI realized this past year that we can

reinforce the idea of knowing onersquosaudience by adapting our own teachingmethods as we learn more and more aboutthe particulars of any given class The moreclosely we can zero in on our ownaudiencersquos needs and goals the better wecan persuade our audience to accept themessage we are trying to convey

My own teaching has improved (I liketo think) since I started to consciouslyincorporate the principles into my lessonplan As I plan each class I spend sometime thinking about this particular bodyof students in addition to reflecting uponwhat has worked in the past As thesemester progresses I might change alesson plan from previous years if I thinkthat this particular group needs moreexperiential learning or more modeling ofsample answers I may even retrysomething that previously received alukewarm reception For example in myupper-level brief writing course this yearI am using excellent student papers as thebasis for selected classes This has allowedme to prepare a class even during weekswhen I am commenting or conferencingon papers Whether I do this next yearhowever will depend on what my upperlevel students have already absorbed fromother courses before taking my course

This audience-centered approach helpsexplain why some of us will look at anexercise and think it is fabulous whereasothers might disagree Undoubtedly theexercise is fabulous for a particular audienceof students This approach also explainswhy some law review articles are selectedfor publication and why others arenrsquot whyI looked over this article several timesbefore submitting it wondering whether itwould appeal to the editors of The SecondDraft and why certain schools win nationalmoot court competitions year after year Afew years ago one of our own nationalmoot court teams placed very high in thebrief portion of a competition I asked oneof the team members what she had doneso that I could use the information to teachothers She laughed and told me that sheand her partner had emulated previouswinning briefs Know your particularaudience

Modeling Persuasion(continued from page 7)

them with a pretrial motion and supportingmemorandum on a ldquodrop awayrdquo issue Thestudentsrsquo first task was to respond to thepretrial motion Thus the students had amodel memorandum to follow to assistthem in drafting their first persuasivememoranda They also had a head start onthe necessary legal research because thememorandum in support of the motioncontained citations to appropriate legalauthorities

During the week that the studentsturned in their memoranda opposing theinitial pretrial motion the legal researchand writing faculty ldquoarguedrdquo the motionbefore a ldquojudgerdquo in class This plan allowedus to model oral argument for our studentswell before they were required to conducttheir own oral arguments at the end of thesemester Later in the semester while themotion was ldquopendingrdquo the studentsattempted to negotiate the claim

Our fact pattern involved a school-aged boy who was mistakenly dropped offby his school bus driver at the wrong stopThe boy wandered in an unfamiliarneighborhood until a vagrant forced himinto an open basement and beat him Theboy and his parents sued the municipalityas the operator of the bus and the ownerof the building in which the assault tookplace The claim against the municipalityprovided the ldquodrop away issuerdquo The drop-away issue was whether the plaintiffs had regregregregreg

Commission this court recognizes its wide experience and technical knowledge in regulation of motor carriers Furthermore by provisions of Chapter 194 the legislature has conferred wide discretionary powers upon this commission

A third group of students habitually divide the subject and verb with a modifying phrase

Summary judgment when there is no genuine issue of material fact may be awarded

Case law interpreting this statute has held that ldquoemployeerdquo excludes officers and directors of a corporation

This structure can add interest and emphasis When overused though it sounds hesitant or stuffy It is hard to read so its overuse tires and irritates the reader

Ajax Truck Lines at the time of filing the application had for many years as a common motor carrier transported goods in interstate commerce Ajax under a permit from the Interstate Commerce Commission transported goods from points outside the state to Milwaukee Racine and Kenosha It also under an intrastate private contract motor carrier license served about ten shippers between these three cities Therefore Ajax at the time of filing its application and the hearings thereon was already operating trucks daily between these three cities

The complaint presents no genuine issue of material fact Thus summary judgment is appropriate

Case law establishes that ldquoemployeerdquo excludes a corporationrsquos officers and directors Thus Mr Gregory cannot be the corporationrsquos employee

This structural habit creates an interesting no-nonsense pace Overused however it can become hard to read It can also create an impatient rather cranky tone

Jacob Jones made his will on November 16 1995 He was 65 He had three sons Joseph was forty-two Howard was thirty-four and Aaron was twenty-four His one daughter Sarah was thirty-five Sarah was married to Jason Sanders Sarah had two children Sally and John Sally was eight John was eleven The testator and his children were all on good terms The testator died on July 16 1999 His will had created a trust Under the trust the grandchildren received $8000 annually

Teaching students to manage sentence structure habits offers several advantages It provides students with an area of choice and teachers with an opportunity to illustrate the variety possible in legal writing It encourages both to master the language itself silencing complaints that legal writing teaches only forms and organizational conventions

ALWD Manual International and Foreign Law Edition to be Published by Aspen Diane Penneys Edelman (Villanova University School of Law) Chair International and Foreign Law Edition Committee ALWD

Like the United States each of the more than 180 nations in the worldmdashand even more international and regional tribunals and organizationsmdashhave generated constitutions treaties statutes court decisions administrative regulations scholarly and other material that legal practitioners and academics rely upon in their professions Many of these countries courts and organizations have also developed their own citation systems to refer to these documents many have not

In spite of these facts American legal citation manuals have for many years superimposed a decidedly American point of view or style of citation upon foreign and international documents instead of acknowledging and using the ldquoindigenousrdquo or ldquonativerdquo method of legal citation and hierarchy of legal authority used in other countries and by foreign and international tribunals and organizations

Recognizing the need for comprehensive treatment of international and foreign law citations Aspen Law amp Business has announced that it will publish a separate International and Foreign Law Edition of the ALWD Citation Manual in early 2003 The goal of the International Edition will be to provide the user with professionally developed guidelines for citation of legal materials used in other countries and by foreign and international tribunals and organizations that recognize existing forms of legal citation and hierarchies of authority (eg civil law Islamic law) that are different from the American system In addition the International Edition will provide the user with easy-to-follow steps for deciphering and composing citations to foreign and international legal materials Most important development of the International Edition will be undertaken under the supervision of ALWD by a diverse group of international law librarians legal writing professionals practitioners and law students

It is anticipated that the International Edition will use where available indigenous or internally developed citation formats It will include diagrams and examples of citation formats informational ldquosidebarsrdquo and references to relevant web and print sources of citation

The first edition of the International Edition will include citation formats for approximately 50 countries international and regional tribunals and organizations The countries and entities included represent a variety of legal systems geographical locations and sizes Citation systems for additional countries and entities are in development and will be available at wwwalwdorg

THE SECOND DRAFT 17

THE SECOND DRAFT 7

CONTINUED ON PAGE 8

Take MyGarbagemdashPleaseTeaching PersuasionThrough ArgumentsAnyone Can Make

Sheila Simon (Southern Illinois University Schoolof Law)

If your school is like ours you have to forcesome students to be ldquoobjectiverdquo in the firstsemester Some do it naturally and somehave to work hard at avoiding the PerryMason moment of their dreams Then thefirst semester ends and we shift gears intopersuasion Again some students find iteasy and some clam up just at the thoughtof a Perry Mason moment And if shiftinginto persuasion isnrsquot scary enough they allknow about the one harrowing act theywill have to perform during the semestermdashan oral argument

I use a quick exercise that helps peopleunderstand that they come equipped withsome persuasive skills and helps themrealize that public speaking will not yieldinstant death

At the beginning of the first class ofthe second semester I give each student aslip of paper just a little bigger than afortune cookie message The slip of paperdescribes an argument the student mustpresent to the class None of thearguments are about legal topics but allof them help illustrate a point aboutpersuasion Each student is asked to cometo the front of the class and present heror his argument It takes a minute or soper student

Two students get assignments to senda child to bed One student is told she isthe childrsquos babysitter and the next studentis told she is the childrsquos parent Eachstudent makes a short persuasive speechto the class The babysitter often tries tocajole the child to go to bed sometimesoffering him- or herself as incentive ldquoIfyou donrsquot go to bed on time I donrsquot knowif I will be allowed to be your babysitteranymorerdquo The parent is usually moredirect ldquoYou will lose television privileges

for Saturday morning if you donrsquot high tailit into bed right nowrdquo After both are doneI note that the difference between ababysitter and a parent is one of authorityA babysitter uses persuasive authority anda parent uses mandatory authority Thisshows the students that they alreadyrecognize difference in authority and canuse it to their advantage

Two other students receiveassignments to persuade a roommate totake out the trash In the first scenario it isthe roommatersquos turn to take out the trashbecause she didnrsquot do it last week In thesecond scenario the student is asking for afavor because she is not feeling well Sheis a bit hung over from the night beforeand knows that the roommate disapprovesof alcohol consumption The first task iseasy The second task takes much morefinesse Sometime students given thesecond scenario leave out the reason forfeeling poorly Others acknowledge it as away to avoid a potentially bigger problemand try to turn it to their advantage ldquoIknow you donrsquot approve of drinking andI think I am learning why Could youpossibly take out the trash for merdquo Afterthese students are done I point out thatwe all know good facts from bad facts weall assess the different ways facts can beused and we put those skills to work inpersuasion every day

One student is given a trickassignment ask the Dean for permissionto take an open can of soda in to theclassroom At our school everyoneunderstands the contextmdashwe just got newcarpetmdashand you might as well be askingto pour grape juice directly on the carpetThe message here is that just because youcan ask for something doesnrsquot mean youhave to ask and long term interests suggestthat you just smile and nod at the Deanand put the can in the recycling bin

These real life argument slips are easyto make and tailor to characters orcircumstances of any school For my listas a starting point e-mail me atssimonsiuedu Your students willappreciate having a little fun while learningand they will all have put onedevelopmental milestone behind them Forthe rest of the semester you will haveexamples to refer back to when you areillustrating a point about choosing

authority working with facts or selectingstrategies You will also have an insurancepolicy for the students who change colorsor sweat profusely before speaking inpublic evidence that they can present anargument and survive

ModelingPlacingPersuasion InContextMyra G Orlen (Western New England CollegeSchool of Law)

Students often ask for models Last yearwe devised an approach that provided ourstudents a model of both persuasivewriting and oral argument and at the sametime satisfied our desire to placepersuasion in a more realistic context

At Western New England CollegeSchool of Law we have historicallyintroduced persuasion in the springsemester of our year-long course Workingwith a single fact pattern students havedrafted a major objective memorandumand then converted that objectivememorandum into a persuasivememorandum either in support of or inopposition to a pre-trial motion The pre-trial motion has then become the subjectof the studentsrsquo oral argument

We have often struggled with thenotion that requiring students tosimultaneously draft opposing motions onany given issue does not accurately reflectwhat happens in the real-world practice oflaw We considered and then discarded theidea of providing half of the students witha pre-trial motion and requiring them todraft supporting memoranda leaving theremaining students with the task ofdrafting responsive memoranda Thatscenario seemed to result in an unevenlearning experience in the context of anopen research assignment

Last year instead of beginning thesemester with students drafting anobjective memorandum we presented

regregregregreg

NE W S Publications Promotions and Other Achievements

Randy Abate joined the Legal Writing Faculty at Rutgers-Camden Law School in July He previously taught in the Widener-Harrisburg Legal Methods Program and he served as director of that program for the last three years In October he delivered a presentation to the ABA Law Student Division Third Circuit Fall Roundtable titled How to Enhance the Moot Court Program at Your Law School

Jala Amsellem (George Washington) has been named the new Associate Director of the legal writing program

Bonnie Baker (NYU) has been named Acting Assistant Professor of Law

Grace Barry (LSU) is the new Director of Legal Writing at Louisiana State University and will serve as the first full-time director of that program Grace who has taught at LSU for two years has also begun the process of hiring two new teachers which will give the program a total of six full-time professionals

Peter Bayer (UNLV) recently joined the writing program at University of Nevada-Las Vegas He also published A Plea for Rationality and Decency The Disparate Treatment of Legal Writing Faculties as a Violation of Both Equal Protection and Professional Ethics 39 Duquesne L Rev 329 (2001) arguing that the disparate terms and conditions of employment for full-time writing professors cannot meet even the minimal standards of rational basis theory under Equal Protection and thus constitute a violation of anti-discrimination principles

Peter Cotorceanu (Washburn) published Estate Tax Apportionment in KansasmdashOut With the Old In With the New in volume 70 of the Journal of the Kansas Bar Association which was published in October

Christine Nero Coughlin (Wake Forest) was named Director of the legal writing program The faculty also agreed that legal writing faculty should attend faculty meetings and that the LWR director would have voting rights

Jo Anne Durako (Rutgers-Camden) was appointed to the editorial board of the Journal of Legal Education Her article Second-Class Citizens in the Pink Ghetto Gender Bias in

Legal Writing was recently published in that journal and the article will be part of her presentation at the AALS conference in New Orleans addressing Labor and Employment in the Academy A Critical Look at the Ivory Tower

Linda Edwards (Mercer) has authored a book on future interests which will be published in December Estates in Land and Future Interests A Step By Step Guide (Aspen L amp Bus 2001) In February the third edition of her legal writing book will be published Legal Writing Process Analysis and Organization (3d ed Aspen L amp Bus 2002)

Suzanne Ehrenberg formerly of Chicago-Kent has joined the faculty at Northwestern as Clinical Associate Professor of Law

Jessica Elliott formerly at Quinnipiac University became Director of the writing program at Roger Williams University

Judith Fischer (University of LouisvillendashBrandeis) authored an article called Public Policy and the Tyranny of the Bottom Line in the Termination of Older Workers which will appear in an upcoming edition of the South Carolina Law Review

Brian Foley (Widener) and Ruth Anne Robbins (Rutgers-Camden) published Fiction 101 A Primer for Lawyers On How To Use Fiction Writing Techniques To Write Persuasive Facts Sections 32 Rutgers LJ 459 (Winter 2001) They also taught a CLE course Storytelling for Lawyers How to Use the Most Powerful Tool of Persuasion to Win Your Cases with novelist Solomon Jones in Philadelphia PA

Brian Foley (Widener) recently published several newspaper articles including some for the Keene (New Hampshire) Sentinel where he formerly worked as a reporter Editorial Bombing Fallout Dissent in US Against Policies Remarkably Quiet HARRISBURG SUNDAY PATRIOT-NEWS October 24 2001 at B17 Should I See Airplane Security as a Do-It-Yourself Job KEENE (NH) SENTINEL October 17 2001 at 6 Editorial Letrsquos Build Rather Than Bomb WILMINGTON NEWS-JOURNAL September 25 2001 at A11 Editorial Revenge Can Leave a Mighty Hangover KEENE (NH) SUNDAY SENTINEL September 16 2001 at D2 Editorial Cards Could Make It Safer for Taxi Drivers PHILADELPHIA METRO August 21 2001 at 5 Editorial What Allen Iverson Has Taught Me HAMPTON ROADS (VA) DAILY PRESS June 19 2001 (Iversonrsquos hometown paper) He also taught several CLE

THE SECOND DRAFT 18

6 THE SECOND DRAFT

Let Bush and GoreTeach(continued from page 5)

approximately 24 times in Bushrsquos brief andthe words ldquonewly fashioned judiciallycreated rewroterdquo were written at least 22times In contrast Gorersquos theme was thatthe Florida Supreme Court was simplyfaithfully applying the state law The Gorebrief rsquos use of the word ldquoconsistentrdquo at least16 times framed the issue entirelydifferently than the Bush brief Theconstant repetition of these words andphrases illustrated to the students howthemes should be continually reinforcedthroughout the brief Even the statementof case was used to persuade with Bushrsquosbrief including facts about the firstSupreme Court review which werenoticeably absent from the Gore brief

The briefs provided many excellentexamples of rhetorical devices that makea brief outstanding For example look atthe well-developed imagery in this sentencefrom the Gore brief ldquoNor does Article IIcreate a lsquostate-constitution-freersquo zone in astatersquos lawmdasheven assuming it would bepossible to pull the thread of stateconstitutional law out of the fabric of astatersquos law when administering oradjudicating questions bearing on electionsfor President and Vice Presidentrdquo (Gorebrief page 21) Bushrsquos brief is also filledwith illustrative writing including ldquoTheunconstitutional flaws in the FloridaSupreme Courtrsquos judgment immediatelybore further unconstitutional fruit rdquo(Bush brief page 2) and ldquoIndeed becausethose counts have been untethered fromthe minimal statutory moorings that thelegislature prescribed for vote-counting rdquo (Bush brief page 28)

You could require students to read thecourt decision too Analyzing what thecourt found persuasive from the partiesrsquobriefs might be very enlightening Did thecourt cite the partiesrsquo briefs Did the courtcriticize or affirm the partiesrsquo argumentsor cited authority How did the courtframe the issues compared to the partiesrsquocategorizations By carefully dissecting theopinion the students can begin to ascertainthe effectiveness of certain argumentsrhetorical techniques and methods oforganization in briefs

The Bush-Gore controversy may beold news now but there will always be a

highly publicized case you can use Manybriefs are now accessible on the InternetDo not worry about finding the ldquoperfectrdquobrief Sometimes a brief with deficienciesis more helpful for the students You canrequire students to edit those parts andexplain to the class why they think theiredits improve the brief Even briefs thatdo not match up perfectly with the editingchecklists reinforce the concept that thereis no perfect way to write There may belegitimate reasons sometimes to ignorethe checklist guidelines

In conclusion using a ldquoreal liferdquofamiliar case made teaching the multiplefacets of persuasion easier moreinteresting and hopefully more enjoyablefor my students

AdvocacyLessons fromMadisonAvenueSue Liemer (Southern Illinois University Schoolof Law)

When I graduated from college the firstjob I held was as a copywriter for Youngamp Rubicam an international advertisingagency in New York City I learned manylessons about persuasion literally onMadison Avenue and I share them withmy students now

Perhaps the most important lessoncame from a deceptively simple sheet ofpaper the company called ldquoCreativeStrategyrdquo Before a copywriter and artdirector could create an ad the CreativeStrategy form had to be filled out andapproved The very concept of such aform is news to most of my students Eventhose artsy people in ad agencies whosework seems so much like play (thinkDarren in the old TV show ldquoBewitchedrdquo)are required to have a strategic plan beforethey start writing Surely an attorney tryingto persuade a judge or jury to ldquobuyrdquo anargument should have a strategic planbefore starting to write too

The hardest item to complete on theCreative Strategy sheet was always the first

line After weeks of meeting with theaccount managers client representativesand market research experts researchingthe product from every possible angle andtrying to learn everything about how theproduct in question could solve a problemor fulfill a need the American public didnot yet even know it had I had to writethe purpose of the ad in a single sentenceI wrote and rewrote and rewrote trying tofigure out the purpose of the workassignment

I encourage my legal writing studentsto discipline themselves and hone theirthinking in much the same way I tell themto research take notes on discuss andanalyze their clientrsquos problem And thenwhen they think they are ready to startwriting they should sit down and askthemselves what they are trying to doWhat is the purpose of the document Ifthey have really developed a strategy ofthe case they should be able to write outthe purpose of their document in onesuccinct sentence

The Creative Strategy sheet alsorequired a succinct description of thetarget market for an ad An entiredepartment of experts provided thebackground research for this crucial partof the strategic plan Any kind ofpersuasive writing is more effective if youknow all you can about the people withwhom you are trying to communicate howthey are likely to perceive what it is youare trying to say and the lingo they use totalk about such things I urge my legalwriting students to write down who theiraudience is and everything they knowabout that audience

At first my students think these stepsare so intuitive that they do not need tobother writing them down In class we gothrough the exercise collectively and theycome to realize that they have to makeconscious strategic choices to hone theirsense of the purpose of their documentLikewise they come to realize that eachdocument potentially has multipleaudiences some of which they did notthink of right away and that they knowquite a bit about those audiences to factorinto their writing They come to appreciatethat a strong sense of ldquopurposerdquo andldquoaudiencerdquo sells both Brand X and theirclientrsquos case

regregregregreg

courses including The Art of Persuasion in Wilmington DE

Scott Fruehwald (Hofstra) authored The Principled and Unprincipled Grounds of the New Federalism A Call for Detachment in the Adjudication of Federalism which will appear in the February 2002 issue of the Mercer Law Review

Kristen Gerdy (Brigham Young University) is now the Director of the Rex E Lee Advocacy Program at BYUrsquos J Reuben Clark Law School She has published two articles Making the Connection Learning Style Theory and the Legal Research Curriculum 19 Leg Ref Servs Q 71 (2001) and The Internet Alternative 19 Leg Ref Servs Q 119 (2001) She also won an award from LexisNexis and the American Association of Law Libraries for an article titled Teacher Coach Cheerleader and Judge Promoting Learning through Learner-Centered Assessment which will be published in the January 2002 issue of the Law Library Journal

Jessie Grearson the Writing Advisor from the John Marshall Law School recently co-authored a book called Love in a Global Village (University of Iowa Press) the book is ldquoa celebration of intercultural families in the Midwestrdquo

Sonia Green formerly at Chicago-Kent is now John Marshall Law Schoolrsquos new Associate Director of the LRW program

Christine Hurtrsquos (Houston Law Center) article Who Will Inherit Citation Network Effects at Work in the Legal Citation Industry will be published in volume 87 of the Iowa Law Review (forthcoming 2002) The article explains antitrust strategies used by new products to compete with established products and shows how the ALWD Citation Manual uses those strategies

M H Sam Jacobson (Willamette) published A Primer on Learning Styles Reaching Every Student 25 Seattle U L Rev 141 (2001) and The ALWD Citation Manual A Clear Improvement Over the Bluebook 3 J of Appellate Prac amp Process 139 (2001)

Steve Jamar (Howard) has recently published several articles Everything Old Is New Again 22 Pace L Rev __ (2001) (an essay sparked by Anthony G Amsterdam amp Jerome Bruner Minding the Law (Harv U Press 2001)) A Lawyering Approach to Law and Development 27 NC J Intl L amp Com Reg 31 (2001) The Human Right of Access to Legal Information Using Technology To Advance Transparency and the Rule of Law 1 Global Jurist Topics no 2 art 6 1-14 (2001) ltwwwbepresscomgjtopicsvol1 iss2art6gt with Konstantinos Kalpakis amp Kenneth J Markowitz Annotated XML Legal Document DTD for ELIS amp GLIN LegalXML Unofficial Note ltwwwlegalxmlorg

citationsgt (April 18 2001) and Book Review Struggling To Find Our Way in a Multi-Religion World 16 JL amp Religion 101-105 (2001) (reviewing Religion and International Law (Mark W Janis amp Carolyn Evans eds Kluwer L Intl 1999))

While on sabbatical next spring semester Steve Johansen (Lewis amp Clark) will be teaching legal writing at University College Cork in Ireland He recently published a book on legal writing for Latvian law students Juridlsk anal ze un tekestu rakst Šana and in conjunction with the publication visited Riga Latvia in 1999 and earlier this year

Joseph Kimble (Thomas C Cooley Law School) published an article in Court Review a journal of the American Judges Association called First Things First The Lost Art of Summarizing 38 Ct Rev 30 (Summer 2001) He also published a two-part article called Plain Words in the Michigan Bar Journal 80 Mich BJ 72 (Aug 2001) and 80 Mich BJ 72 (Sept 2001)

Susan Hanley Kossersquos (University of Louisvillendash Brandeis) article Student Designed Home Web Pages Does Title IX of the First Amendment Apply has been accepted for publication in volume 43 of the Arizona Law Review (2001)

Terri LeClercq (Texas) published Teaching Student Editors to Edit 9 Perspectives 124 (Spring 2001) She has also been asked to work on a project coordinated with the Federal Judicial Center in which she will draft class action notices in plain English

James Levy (Colorado) published an article in the Journal of Legal Education titled The Cobbler Wears No ShoesmdashA Lesson for Research Instruction 51 J Legal Educ 39 (2001) (forthcoming)

Karin Mika (Cleveland-Marshall) the Assistant Director of Legal Writing has been appointed as the Moot Court Advisor for the schoolrsquos nationally renowned Moot Court team

Samantha Moppett (Arizona State) a Legal Writing Professor was recently placed on academic professional tenure track and Judy Stinson LWR Director was awarded tenure

Deborah M Mostaghel (University of Toledo) authored Wrong Place Wrong Time Unfair Treatment Aid to Victims of Terrorist Attacks which will appear in the Brandeis Law Journal (University of Louisville) The article discusses types of aid available for victims of terrorism under our current federal laws

Sandy Patrick has moved from Wake Forest to Lewis amp Clark

THE SECOND DRAFT 19

THE SECOND DRAFT 5

that the dynamics between interviewerand interviewee shaped the account theinterviewees gave and that aninterviewerrsquos verbal and non-verbal cuescan subtly but powerfully guide a witnessin a particular direction

In the next phase of the interviewthe students critique an affidavit that isbased upon this interview and theywrestle with the ethical constraints andchallenges that are inherent in factdevelopment By the end of the exercisestudents have gained a richer and morenuanced perspective on the subjectivityof fact and the implications that advocacyhas at the earliest stages of an attorneyrsquosengagement with an issue

1 At NYU Lawyering is a required year-longcourse for first-year law students Lawyeringroutinely places students in role as attorneys in avariety of simulated practice settings and demandsthat students rigorously analyze their experiencesto begin to understand the sophisticated interactivefact-sensitive and interpretive work that isfoundational in legal practice As part of thisprocess Lawyering students engage in legal researchdraft memoranda and write briefs on a range ofcomplicated legal issues They interview counselnegotiate mediate and engage in formal andinformal oral advocacy

of the creation of fact I ask half mystudents to leave the room and tell theremaining students nothing more than thatthey have been asked by a friend to watcha bicycle that is sitting in the courtyard ofthe law school I turn off the lights andbegin to play a videotape For the firstminute of the tape the students see thecourtyard and the bicycle Then a youngman carrying a box walks up the stairs fromthe courtyard to the front door stumblingand dropping the box As he picks himselfup another man walks out through thedoors and pushes somethingmdashperhaps awheeled dollymdashaway from the steps Thatconcludes the video I then tell the studentswho viewed the tape that they have beencontacted by an attorney who wants to talkto them about the events they witnessedin the courtyard

The students who were outside thedoor are now asked to return I have giventhem instructions that they are cast asattorneys for either NYU or Ace Truckingand that Ace had delivered a small lamp toNYU but it had arrived broken Thesestudents are told that some of theircolleagues had been in the courtyard at the

time of the delivery and are available foran interview about what they had seenThus each student interviewer is pairedwith an interviewee for a fifteen-minuteinterview and the whole class then debriefsthe process Students are uniformly amazedat the staggering variety of accounts theyhave given and received about whathappened in the courtyard The man withthe box was 20 or 30 wearing a jacket eitherred or blue To some the dolly was in plainview to others it was a hidden danger Heeither tripped because of the dolly ordespite it the box was both big and smalland he carried it comfortably andawkwardly Some students inevitably reporthaving heard a rattling sound after the mandropped the box while others are firmlyconvinced that the box never made contactwith the ground The contrasts andcontradictions continue as to virtually everydetail of what the interviewees observed

A critical revelation students have isthat by virtue of their advocacy positionthey asked often subconsciouslyquestions designed to elicit facts thatwould be favorable to their client Forexample attorneys for Ace asked ldquoDidthe man trip over the dollyrdquo instead ofthe more open-ended ldquoWhat caused theman to stumblerdquo Other students realize

Creating Facts(continued from page 1)

Susan Hanley Kosse (University of LouisvilleBrandeis School of Law)

Teaching persuasion has its challenges Notonly do you have to teach all the sectionsof the brief you also need to get thestudents to incorporate themes tell a storyand write with ldquopunchrdquo Almost every legalwriting text has sample briefs in theappendix Although intended to be helpfulthe students are unfamiliar with the casesand facts the briefs are based upon so theydo not have the necessary context toappreciate the briefs Last semester Iaddressed this problem by teachingpersuasion using the briefs filed in the Bushv Gore Supreme Court case (531 US __(2000) briefs can be accessed at httpsupremelpfindlawcomsupreme_courtbriefsindex2000html looking under ldquoOctober2000 termrdquo) Because the students werealready aware of the issues that gave rise

Let Bush and Gore Teach Persuasionto the lawsuit the briefs provided veryfertile ground to discuss many persuasivewriting concepts

At the beginning of the springsemester I assigned both briefs to be readin their entirety Each week as I taught adifferent section of the brief I asked thestudents to reread that section in thepartiesrsquo briefs Using the editing checklistin our text (Writing and Analysis in the Lawby Shapo Walter amp Fajans) I asked thestudents to critique the various sections ofthe brief The students did not always agreewith the lawyersrsquo drafting For example inthe Gore brief the questions presentedwere not framed to suggest an affirmativeanswer We discussed the pros and consof this approach and how the questionscould be redrafted The headings providedanother example of an approach that didnot meet the textbook guidelines Bothbriefs included headings that did not

include relevant facts or reasons to supportthe legal contentions favorable to the clientAgain we discussed whether the headingscould be made stronger by including thoserelevant facts or if there may be reasonsfor not including them

The briefs were best used to illustratethe various methods of persuasion thelawyers employed I asked the students toread the introductions to both briefs andtell me which they thought was mostpersuasive and why The students weresplit but not always along their politicalideologies Most justified their choicesbecause a particular brief rsquos theme wasmore evident and compelling to them Thetheme for Bushrsquos brief was that the FloridaSupreme Court was a renegade court tryingto change all the rules in a haphazardfashion To reinforce this theme the wordsldquoarbitrary standardless selectiverdquo appeared

regregregregreg

CONTINUED ON PAGE 6

Ruth-Ellen Post formerly Director of the ABA-approved programs in Paralegal and Legal Studies at Rivier College has joined the faculty at Franklin Pierce Law Center in Concord New Hampshire where she now teaches first-year law students as Professor of Legal Skills

Norman G Printer is the new Director of Legal Writing at the University of Mississippi

Wayne Schiess (Texas) published Meet ALWD The New Citation Manual 64 Tex BJ 911 (Oct 2001) In October the law school faculty promoted him to Senior Lecturer

Michelle Simon (Pace University) was named Associate Dean of Law Michelle had been the Director of Legal Writing and led the move to establish Pacersquos integrated Criminal Law Analysis and Writing Course taught exclusively by tenured and tenure-track faculty

Amy E Sloan formerly at George Washington Law School is now the Co-Director of the Legal Skills Program at the University of Baltimore School of Law

Nancy Soonpaa formerly at Albany is now the Director of the Legal Practice Program at Texas Tech

The Stetson Law Review published the works of several legal writing professors in a recent edition Terri LeClercq (Texas) The Nuts and Bolts of Article Criteria and Selection 30 Stetson LR 437 (Fall 2001) Anne Enquist (Seattle) Substantive Editing versus Technical Editing How Law Review Editors Do Their Work at 451 Darby Dickerson (Stetson) Citation Frustrationsmdashand Solutions at 477 Toni Fine (YeshivandashCardozo School of Law) Glory Days The Challenge of Success Beyond Law School at 529 and David Romantz (University of Memphis) Book Review at 611 (reviewing Elizabeth Fajans amp Mary R Falk Scholarly Writing for Law Students Seminar Papers Law Review Notes and Law Review Competition Papers (2d ed West 2000))

Kent Streseman (Baylor) formerly a Visiting Assistant Professor at Chicago-Kent has joined the Baylor writing faculty which is a ldquodirectorlessrdquo program

Evelyn Tombers (Thomas C Cooley Law School) has been elected Chairperson of the State Bar of Michiganrsquos Appellate Practice Section She has previously served as the sectionrsquos newsletter editor council member Treasurer and Chair-Elect

Barbara Tyler (Cleveland-Marshall) has been promoted to Director of Legal Writing She will also be serving with Lou Sirico (Villanova) on a Scholarship

Committee for members of LWI whose schools will not pay for them to attend conferences

Lorri Unumb (George Washington) is the new director of the Legal Research and Writing program She was formerly with the Department of Justice and taught as an adjunct at GW for two years

Nancy Wanderer (Maine) authored Writing Better Opinions Communicating with Candor Clarity and Style an article on appellate decision writing which will be published in the forthcoming January edition of the Maine Law Review

Melissa Weresh (Drake) published two articles The ALWD Citation Manual A Coup de Grace 23 UALR LJ 775 (Spring 2001) and The Unpublished Non-precedential Decision An Uncomfortable Legality 3 J of App Prac amp Process 175 (Spring 2001) She also presented the latter article at the journalrsquos symposium which was directed toward appellate practitioners in May 2001 in Little Rock Coleen Barger (University of ArkansasndashLittle Rock) organized the successful symposium

Victor Williams (Catholic University) is the new Director of legal writing The former director Michael Koby has moved to Washington University to be an associate director of the LRW program there

The International Law Institute of Washington DC published the second edition of Mark E Wojcikrsquos (John Marshall Law School) book Introduction to Legal English a legal course book for lawyers and law students who speak English as a second language He also conducted a two-week legal writing program in Washington DC and a three-week legal drafting training program in Singapore and lectured in Indonesia on basic principles of clear legal writing for lawyers who speak English as a second language He continues to serve as Co-Chair of the International Human Rights Committee of the ABA Section of International Law and Practice and as Vice Chair of the International Health Law Committee of that section He was also named a Vice Chair of the International Criminal Law Committee of the ABA Criminal Justice Section In 2002 he will be on sabbatical in Hawaii

New Legal Writing Faculty

Appalachian welcomes a number of new LW professors this year David ButleRitchie (from Templersquos LLM program) who also teaches Dispute Resolution Wendy Davis (Suffolk) who will also be teaching a Real Estate Transactions practicum Stewart Harris (from private practice and the University of Floridarsquos Levin College of Law) and Taylor Simpson-Wood (Tulane) who both will

THE SECOND DRAFT 20

4 THE SECOND DRAFT

ask your students what they need in avehicle and write these needs on theblackboard Theyrsquoll probably come up withtransportation reliability number ofpeople it seats safety price range suitabilityfor a particular function (SUV v sportscar) gas mileage prestige factor insurancecosts color If the salesman can think ofa car that meets these needs and concernsand then takes the customer to thatparticular car the odds of a sale are muchhigher now The salesman will need to doless ldquoconvincingrdquo less huffing and puffingThis will be clear to your students

Now bridge from cars to cases Doesa lawyer get very far by ldquostanding behindrdquothe argument and huffing and puffing likeour car salesman The huffing and puffingwill succeed only if it carries out thelawyerrsquos main task meeting the judgersquosneeds The judge is looking for guidancein making a difficult YesNo decisionmdashldquoMayberdquo is not an option The judge wantsto be assured that the decision willconform to binding law that it will carryout the principles inherent in that area oflaw that it will be fair that it will evincecommon sense that it will effect goodsocial policy A lawyerrsquos argument or briefshould meet all these needsmdashthe more ofthese needs it meets the higher the oddsthe judge will buy it2

EXERCISE 2 The Job SearchThis exercise will help your students

keep their newly-minted grades inperspectivemdashand make them feel betterabout themselves

Have your students transportthemselves into the near future when theyare applying for their dream job Anassociate at a large law firm Prosecutoror public defender An in-house jobJudicial law clerk Public interest advocateAsk the students to write down attributesthey can bring to this dream job now orafter their law school training Then askyour class to write down what they perceiveto be the needs of this future employerAfter that ask studentsmdashgiven theseneedsmdashto think of more attributes theyhave or will have when they apply

After a few minutes debrief When Iran the exercise I asked students whether

their being forced to think about theemployerrsquos needs had led students to thinkof additional attributes that they had notthought of earlier or to stress particularattributes Many students nodded Yes

This exercise has benefits beyondteaching persuasion It helps students thinkabout their goals and lends perspectivewhen grades are being posted Indeedmany of the attributes listed had nothingto do with grades For example studentslisted ldquohard workingrdquo ldquodiligentrdquoldquoexperience in salesrdquo ldquostrong writerrdquoldquoexperience in legislaturerdquo and ldquogoodpeople skillsrdquo attributes that arguably havemore impact on success in law practicethan do good grades

EXERCISE 3 Recycle a MemoAssignment

Herersquos a way to use your open orclosed memo assignment from firstsemester to introduce students to ldquotheoryof the caserdquo argumentsmdashsomething mostlaw professors would agree is very hard toteach Herersquos how I used mine

My closed memo problem dealt witha high school student charged with criminalthreatening The young woman Marciahad written a poem about her ex-boyfriendon the bathroom wall3 I asked my studentsto represent Marcia and to brainstormarguments they might make to a juryldquotheory of the caserdquo types of arguments alawyer might make to a jury in an openingstatement After a few minutes I askedthem to brainstorm arguments they mightbring to the prosecutor a week before thetrial to get the prosecutor to drop thecharges

Then without debriefing I askedthem to take the other side to putthemselves in the shoes of the prosecutorand come up with ldquotheory of the caserdquoarguments to persuade a jury and then tobrainstorm arguments a prosecutor wouldmake at a pre-trial meeting with Marcia andher lawyer to persuade her to plead guiltyI gave the class a few minutes to writedown these arguments

Debriefing showed that the studentsrecognized that arguments must befashioned according to the needs of theparticular audience As Marciarsquos counselstudents argued to the jury that it shouldnot destroy Marciarsquos bright future byconvicting her for merely writing a poem

and expressing her feelingsmdashbothinherently good activities In their effortsto persuade the prosecutor to drop thecharges the students argued that by goingto trial the prosecutor risked appearing toblow a high school breakup out of allproportionmdashand could be perceived asbullying a heartbroken teen

Wearing the hat of the prosecutorstudents argued that school crime must becleaned up They also argued that evencolorable threats must be taken seriouslyso as to avoid Columbine Colorado typesof tragedies The students-as-prosecutorsrsquoarguments were different vis a vispersuading Marcia to plead guilty Studentsconsidered Marciarsquos needs getting intocollege and avoiding a criminal record Mystudents thought of ldquoincentivesrdquo such asletting her plead guilty to a lesser chargeor to be sentenced to community service

Wonderfully students arrived at thesearguments on their ownmdashI didnrsquot tell thembeforehand what prosecutorsrsquo or juriesrsquoneeds are In one class period theyinternalized the idea of persuasion asmeeting a ldquopersuadeersquosrdquo needs and goalsAn additional benefit of this exercise wasthat it helped me show that the ldquotheoryof the caserdquo is not a rigid concept but ashifting one depending upon the needs ofthe particular audience

1 Meeting the needs of a person you are trying topersuade is the most important and effective partof persuasion For an in-depth discussion of thisidea see Norbert Aubuchon The Anatomy ofPersuasion 48-57 (1997) (Chapter 6ldquoNeedsrdquo)2 How to meet the particular needs of judges isthe subject of an article-in-progress of mine ldquoTheFive Crsquos How to Court a Judgerdquo (the five Crsquosdescribe the most common needs for anyone in thejudicial role the need to be ConscientiousConservative Conformist to use Common senseand to Crank out the work) The idea is the basisof one of my CLE programs ldquoThe Art ofPersuasionrdquo Please call me at 302-377-2047 ore-mail bjfolzyahoocom for a copy3 Special thanks to Susan Simms of CapitalUniversity Law School whose problem I adapted

Used Cars(continued from page 1)

regregregregreg

also be teaching Civil Procedure and Robert Wood (recently from private practice) who will also be heading up the schoolrsquos ASP program

Claire C Robinson May (Cleveland-Marshall) has been hired as a Lecturer in Legal Writing

The University of Oregon welcomes Joan Malmud and Kate Weatherly to its Legal Research and Writing faculty They practiced with Paul Weiss Rifkind Wharton amp Garrison in New York and the Native American Rights Fund in Boulder respectively before coming to Oregon

Program News After two years of discussion the faculty of The Dickinson School of Law of Pennsylvania State University voted to extend limited voting privileges to Lawyering Skills Professors who will be able to vote on all issues except personnel decisions matters affecting promotion and tenure or amendments to the by-laws

Southern Illinois University School of Law has given broader votes to clinical faculty (including legal writing faculty) and librarians who will now be able to vote on most matters other than hiring promotion and tenure of tenure-track faculty

Conferences and Meetings Boston College Law School will hold the New England Legal Writing Consortium on Friday December 14 2001 At the meetings of the New England Legal Writing Consortium in March and June 2001 the participants agreed that it would be worthwhile to devote the December 2001 conference to ldquodeconstructing IRACrdquo To learn more about how programs conceptualize and teach the construction of an objective memo each participating program has been asked to prepare an objective memo based on common authority and facts taken from a closed assignment used for first-year students (More than one person within a program could prepare a memo or two small programs could collaborate on one memo) The memos will be shared at the conference and the participants will discuss their different approaches to the memo problem while discussing the effectiveness of each The conference will be held at Boston College Law School 885 Centre Street Newton Centre MA on Friday December 14 from 1000-330 For information contact Judy Tracy at tracyjubcedu or at 617-552-3078

Several events of interest to LWI members will take place during the AALS Annual Meeting in New Orleans Thursday January 3 through Saturday January 5 2002 (for more information see page 2) The Golden Pen Award ceremony is scheduled for 630 pm on Thursday January 3 A legal writing reception will be held at the Columns Hotel in the Garden District on Saturday January 5 from 4 to 6 pm The AALS Section on Legal Writing Reasoning and Research will elect a Secretary to begin serving in January 2002 The Nominating Committee is the Section Executive Committee Chair Steve Johansen (Lewis amp Clark) Immediate Past Chair Kate OrsquoNeill (Washington) Chair-Elect Joan Blum (Boston College) and Section Secretary Dan Barnett (Boston College) The person who serves as Secretary agrees to publish two Section newsletters attend the annual Section Executive Committee meeting held during the Annual Meeting assist the Chair and Chair-Elect in carrying out Section activities and serve on the Section Executive Committee for three terms of office beyond the term of Secretary first serving as Chair-Elect then as Chair and finally as Immediate Past Chair Nominations closed in November The Committee will review each candidatersquos resumeacute and personal letter which will serve as the basis for the Committeersquos nomination at the Sectionrsquos annual business meeting For further information contact Professor Dan Barnett Boston College Law School 885 Centre Street Newton MA 02459 617-552-2615 danielbarnettbcedu

The Second Annual Rocky Mountain Regional Legal Writing Conference will be held on March 1 amp 2 2002 at Arizona State University College of Law in Tempe The Program Committee invites participants to submit proposals for the conference presentations on any subject pertaining to legal research and writing Presenters may suggest ideas for as many as twelve 20-minute slots for short practical presentations on teaching methods or assignments that have been especially successful or presenters may suggest ideas for one 50-60 minute time slot Those wishing to propose a presentation should e-mail a brief description of the presentation as well as your name address phone number fax and e-mail information to Terrill Pollman at pollmanccmailnevadaedu You may also submit a proposal to Professor Pollman by mail Boyd School of Law UNLV 4505 Maryland Parkway Box 1003 Las Vegas NV 89154-1003 or fax 702-895-2482 For more information call 702-895-2407 The deadline for proposals is January 15 2002

The 2002 LWI Conference at the University of Tennessee College of Law Knoxville Tennessee starts on Wednesday May 29 2002 (for more information on the conference see pages 2 and 22)

THE SECOND DRAFT 21

THE SECOND DRAFT 3

I want to give a very sincere thanks to Jo Anne Durako(Rutgers-Camden) for the immense amount of time and effortshe committed last year as Chair of the Website Committee toensure that the website became a reality Many other peoplehelped but special thanks should also go to Dean Rudy Hasl ofSeattle for his commitment of resources to support our website Bill Galloway (Seattle) for taking on the position ofwebmaster Laurel Oates (Seattle) for many hours of behind-the-scenes work Rick Peltz (Arkansas-Little Rock) for all hisefforts in collecting the bibliographies from the 2000 LWIconference and designing the bibliographies page and Joan Blum(Boston College) who spent so much time obtaining issues ofThe Second Draft in pdf form and creating an index (BecauseThe Second Draft issues are in ldquopdf rdquo form you can view downloadand print them so that they look exactly like the paper copiesyou received in the mail)

For this next year Joan and Rick have undertaken to be Co-Chairs of the Website Committee so look for futureimprovements and innovations If you have any ideas aboutthe web site donrsquot hesitate to contact them at blumbcedu orpeltzflashnet

The Second DraftI want to compliment the editors of The Second Draft for the

past year Barbara Busharis (Florida State) and Suzanne Rowe(Oregon) I love our newsletterrsquos new look (thank you Barbarafor your technological genius) and content and Irsquom sure therewill be new surprises in store for all of us in future issues We willhave a new editor on board this year Sandy Patrick (Lewis ampClark formerly Wake Forest) who comes with a background injournalism She joins Barbara and Suzanne for this fallrsquos issueand will replace Suzanne next spring as Suzanne turns her attentionto her many other national activities in our legal writing disciplineThank you Suzanne for your contribution to The Second Draft Ifyoursquod like information about contributing to The Second Draft seethe LWI website at wwwlwionlineorg

2002 LWI ConferenceLook for the brochure for the 2002 LWI Conference late

this fall This next conference takes place at the University ofTennessee College of Law in Knoxville Tennessee May 29 throughJune 1 2002 and the program committee co-chaired by DanBarnett (Boston College) and Suzanne Rowe has prepared I heara very interesting program Carol Parker (Tennessee) and the restof the Site Committee have been busy with all the behind-the-scenes preparations including some great entertainment Watchthe LWI website for updates on the conference

Golden Pen Award at the AALS Annual Meeting in NewOrleans

For those of you coming to the AALS Annual Meeting in NewOrleans donrsquot miss the Golden Pen Award ceremony and receptionon Thursday January 3 2002 at 630 pm in the Grand Salon of theHilton New Orleans Riverside LWI will be giving its second GoldenPen Award to Dean Don LeDuc of Thomas M Cooley Law Schoolin recognition of his long-standing commitment to legal writingDean LeDuc has been a vocal advocate for the importance of legal

writing in the law school curriculum and in the legal profession Herecognized early on that a law schoolrsquos legal writing faculty deservestatus commensurate with the rest of the schoolrsquos faculty Moreimportant he made this vision a realitymdashfor the past fifteen yearsall legal writing faculty members at Cooley have held tenure-trackpositions Look for further announcements of this important eventon the legwri and dircon listservs and on the LWI website

LWI Board of Directors ElectionDonrsquot forget that there will be an election this spring for seven

positions on the LWI Board of Directors This is a wonderfulopportunity to run for a position that will really make a differenceto the future of the Institute In December 2001 or early January2002 Steve Johansen (Lewis amp Clark) President-Elect and Chairof the Elections Committee will be sending out on the legwriand dircon listservs and placing on the LWI website more specificinstructions on how to nominate yourself or others for thesepositions

The JournalDiana Pratt (Wayne State) has made an enormous

contribution over the years to LWIrsquos journal Legal Writing Inrecognition of her contribution the LWI Board at its July 2001meeting changed Dianarsquos appointment from Acting Editor-in-Chief to Editor-in-Chief through Volume 9 CongratulationsDiana

As to the current status of the journal issues Volume 7 theproceedings issue from the 2000 LWI Conference will be outlate this fall and Volume 8 is scheduled to be completed late inSpring 2002 The Editorial Board of the Journal is currentlysoliciting articles for Volume 9 See the LWI website forinformation on submitting articles to the journal

In the near future look for issues of our journal to be includedin the on-line databases of Westlaw and Lexis

ALWDLWI SurveyDonrsquot forget to check out the Survey results on line the results

from the 1999 2000 and 2001 Surveys are available to bedownloaded This important survey is sponsored by the LegalWriting Institute and the Association of Legal Writing Directorsand provides excellent data on program configurations as well asstatus and salary issues in our profession Either go to the newLWI website (again wwwlwionlineorg) and follow the ldquosurveyresultsrdquo link (see the left hand menu bar) or go directly to theALWD website at wwwalwdorg

If you have any suggestions for the Survey contact the Co-Chairs of the Survey Committee Jo Anne Durako (Rutgers-Camden) at durakocamdenrutgersedu and Kristin Gerdy(Brigham Young) at gerdyklawgatebyuedu

In addition to all the people mentioned above I want to thankall my hardworking colleagues in the Institute I did not namespecifically but who are making valuable contributions as membersand Chairs of committees as Board members or officers aspresenters and attendees at our conferences as editors on thejournal or other Institute publications or in a multitude of otherways As Hillary Clinton would say it takes a village to run theInstitute

Reflections and Visions The Past Present and Future of Legal Writing

The tenth biennial conference of the Legal Writing Institute will be held May 29-June 1 2002 at the University of Tennessee College of Law in Knoxville Tennessee

The conference will celebrate the successes our community has achieved within the academy and examine the challenges that lie ahead The plenary speaker is Professor Terri LeClercq of Texas (See sidebar this page)

Over 60 conference presentations will explore curricular design the intersection of legal theory and legal writing advances in technology scholarship works in progress and much more Other highlights include

Registration for the conference is $350 through April 30 This includes entrance to all meetings breakfast lunch and dinner on Thursday and breakfast and lunch on Friday and Saturday Three exciting social events are also included in the registration fee a reception at the Knoxville Museum of Art dinner for conference participants and their families at the Knoxville Zoological Gardens and a Riverside Reception as the conference finale Housing is available in nearby hotels or dormitories

Conference brochures will be mailed soon Please send in your registration as soon as possible All who register will receive information in the spring about participating in the Idea Bank to be coordinated by Sophie Sparrow (Franklin Pierce) and Ruth Anne Robbins (Rutgers-Camden) Presenters will receive additional information from the Program Committee and the Bibliography Committee several months before the conference

If you have questions please contact one of the Conference Co-Chairs Dan Barnett danielbarnettbcedu or Suzanne Rowe srowelawuoregonedu Please direct questions about the site to the Site Chair Carol Parker at parkerlibralawutkedu

For additional information please visit the LWI website at wwwlwionlineorg

2002 Plenary Speaker Professor Terri LeClercq

Terri LeClercq has taught at the University of Texas School of Law since 1982 Her courses include advanced legal writing editing for editors thesis writing for LLM legal research and writing negotiations and drafting and real estate transactions and drafting

Professor LeClercq has published three books over sixty ar ticles poems short stories and photographs She has extensive experience as a writing consultant to law firms courts bar associations and organizations nationwide She directs the law schoolrsquos writing center and is the director of international programs During summers she is the law school liaison to numerous pre-law programs In her spare time she and her husband Jack Getman travel extensively to advance labor and human rights issues

In 1994 Professor LeClercq challenged members of the Legal Writ ing Institute to re-invent themselves as diamonds the sparkle of the law curriculum This yearrsquos plenary session is sure to include new inspiration and challenges

THE SECOND DRAFT 22

2 THE SECOND DRAFT

THE LEGAL WRITING

INSTITUTEThe Legal Writing Institute is a non-profit corporationfounded in 1984 The purpose of the Institute is topromote the exchange of information and ideas aboutlegal writing and to provide a forum for research andscholarship about legal writing and legal analysis

PresidentJane Kent Gionfriddo (Boston College)President-ElectSteven Johansen (Lewis amp Clark)SecretaryDeborah Parker (Wake Forest)TreasurerDavalene Cooper (New England)

Board MembersColeen Barger (Arkansas-Little Rock)Mary Beth Beazley (Ohio State)E Joan Blum (Boston College)Maureen Straub Kordesh (John Marshall)Jan Levine (Temple)Susan McClellan (Seattle)Kathryn Mercer (Case Western Reserve)Laurel Currie Oates (Seattle)Terry Seligmann (Arkansas-Fayetteville)Helene Shapo (Northwestern)Louis Sirico (Villanova)

The Second Draft is published twice yearly and is aforum for sharing ideas and news among members of theInstitute For information about contributing toThe Second Draft contact one of the editorsBarbara Busharis (Florida State) bbusharilawfsueduSandy Patrick (Lewis amp Clark) patricklclarkeduSuzanne Rowe (Oregon) srowelawuoregonedu

From the Editors

Reminder Appl icat ions for ALWDresearch grants for the summer of 2002in the amount of $5000 per grant are dueby January 31 2002 For an applicationform and guidel ines contact ALWDPresident Nancy Schultz (Chapman) atnschultzchapmanedu

Jane Kent Gionfriddo (Boston College Law School)

In this issue I am going to take the opportunity to highlightimportant developments activities and resources of the Institute

LWI WebsiteBe sure that you check out the new LWI Website at

wwwlwionlineorg This site has many wonderful resources Theseinclude information about LWI (officers Board memberscommittee lists) information about the 2002 LWI conferenceat the University of Tennessee information about our journalinformation about The Second Draft as well as downloadable issuesbibliographies from the 2000 conference presentations and manyother interesting features

The Presidentrsquos Column

The essays in this issue are timed for those programs that teachpersuasive writing in the spring semester of the first year If yourprogram teaches persuasion in the fall or if you teach an advancedadvocacy course we think you will still find inspiration heremdashbut you may have more time to consider ways to incorporatethese great ideas into your teaching

We were overwhelmed with the number of items in theldquoNewsrdquo section Thank you for sharing your accomplishmentswith us Special congratulations go to The Honorable KaronBowdre formerly Professor and Director of Legal Writing atSamford who has been confirmed as a federal district judge

With this issue we welcome Sandy Patrick as an editor ofThe Second Draft She has recently moved from Wake Forest toLewis amp Clark We are especially excited about Sandyrsquos backgroundin journalism

We also appreciate the continued assistance of DonnaWilliamson (Oregon) and the staff of Florida State UniversityPrinting and Mailing Services

In the next issue essays will explore the many possibilitiesof a third semester of required legal writing We are particularlyinterested in the experiences of those of you teaching in programsthat already have at least three semesters of legal writing What isthe content of each required course What more have you beenable to cover with the extra semester What have been the benefitsof a three-semester curriculum What is the ideal way to use thethird required semester We look forward to hearing from youThe next deadline for submissions will be March 15 2002

Finally as the year draws to a close we want to express ourcontinued concern and support for all our colleagues and friendswho have been directly affected by the attacks on New York andWashington

Barbara J Busharis (Florida State)Suzanne E Rowe (Oregon)

LWI Board Meetings AALS Annual Meeting Saturday January 5 2002 700 am 2002 LWI Conference Wednesday May 29 2002

CALENDAR 2002 LWI Conference

2002 LWI Conference University of Tennessee College of Law Knoxville TN Wednesday May 29 through Saturday June 1 2002

Call for Nominations January 2002 Elections March 2002

Status of Volume 8 Anticipated publication Spring 2002 Status of Volume 9 Currently soliciting articles

The Second Draft

Deadline for submissions for Spring 2002 issue March 15 2002 Deadline for submissions for Fall 2002 issue (LWI committee reports) October 15 2002

We welcome unsolicited contributions to The Second Draft Our goals include providing a forum for sharing ideas and providing information that will be helpful to both experienced and novice instructors Each newsletter will have a ldquothemerdquo with the exception of newsletters that follow the LWI biennial conferences but the content of the newsletter will not be limited to a particular theme

Content of submissions We encourage authors to review recent issues of The Second Draft to determine whether potential submissions are consistent with the type of contribution expected and with the format and style used Submissions should be written expressly for The Second Draft but we will consider submissions which explore an aspect of a work in progress that eventually will be published elsewhere The ideal length for submissions for a ldquothemerdquo issue is approximately 500 words Longer articles will be considered if their content is particularly newsworthy or informative

Deadlines Material can be submitted to the editors at any time Submissions received after a deadline for one issue will be considered for a later issue with the exception of submissions written to respond to a particular ldquothemerdquo For the next issue the deadline for submis-sions will be March 15 2002

Form of submissions We encourage electronic submission Submissions can be attached to an e-mail and sent to either Barbara Busharis at bbusharilawfsuedu or Sandy Patrick at patricklclarkedu You may also send a diskette to Barbara Busharis FSU College of Law 425 W Jefferson St Tallahassee FL 32306-1601 or to Sandy Patrick Northwestern School of Law at Lewis amp Clark College 10015 SW Terwilliger Blvd Portland OR 97219-7799 If electronic submission is not possible please mail a copy of the submission to both editors using the addresses given above Documents in WordPerfect are preferred for other acceptable formats contact the editors Include your name full mailing address phone number(s) and any other contact information

Review and publication Submissions are reviewed by the editors One of the editors will notify the author of the articlersquos acceptance rejection or a conditional acceptance pending revision The initial review process will generally take approximately two weeks Articles that require extensive editing will be returned to their authors with suggestions and their publication may be delayed If an article is accepted it may be further edited for length clarity or consistency of style

THE SECOND DRAFT 23

THE SECOND DRAFT 1

SECOND DRAFTBulletin of the Legal Writing Institute

LEGALWRITINGINSTITUTE

CONTINUED ON PAGE 4

Teaching Students to Persuade

CONTINUED ON PAGE 5

In This IssueEssays Teaching Students to Persuade 1 4-14The Presidentrsquos Column 2Professor Karon Bowdre Confirmed as US District Judge 14Tips for New Teachers 15From the Desk of the Writing Specialist 16ALWD Manual International and Foreign Law Edition to be Published by Aspen 17News Conferences and Meetings 18Reflections and Visions LWI Biennial Conference 22Calendar 23

Brian J Foley (Widener University School ofLaw)

Persuasion is getting someone to do what youwant him or her to do There are lots of waysto persuade You can force someone at gun-point You can use your position of authorityand bark orders You can pay someone to dosomething or otherwise bargain If you arean infant you can cry Or you can show theperson that her doing what you want her todo will in fact meet her needs1

The last option is the only one relevantto law students learning how to convincejudges Lawyers canrsquot point guns at judgescanrsquot pull rank on judges canrsquot pay judges or

Used Cars and Recycled Memosotherwise bargain for a favorable decision(read bribe) Crying is legal but rarely works

Given this understanding I introducemy first-year legal writing students andupper-level advanced brief writing classto persuasion with three baselineprinciples persuasion is something we alldo all the time anyway persuading a judgeis merely a highly stylized form of thisactivity and persuasion is the heart andsoul the fun part of lawyering Thefollowing exercises are an effective way toconvey these principles

EXERCISE 1 The Used Car LotHave your students envision

Creating FactsBonnie M Baker (NYU School of Law)

I find that students enter law school withan intuitive understanding that the craftof the lawyer in role as an advocate isto persuade They understand theadvocacy function as one of urging aparticular view of the law or the factson a neutral third party What uniformlycomes as a shock to virtually all of mystudents is that the very creation of factis inextricably linked to advocacy andpersuasion

Law students find this anuncomfortable controversial propositionbecause they are accustomed to taking theexistence of objective fact for granted Thestandard fare for first-year law studentsconsists of a steady diet of appellatedecisions where the facts in the record

Itrsquos hot and sun glints off the chrome andglass Immediately a salesman strutstoward a car and promises ldquoI stand behindthis car itrsquos great and it has new tiresrdquoAsk your students if they will buy the carTheyrsquoll probably say no Ask them to thinkwhy for a moment

Then move on to present anotherscenario with students envisioningthemselves walking into a pleasant climate-controlled showroom This time thesalesman shows no carsmdashat least not rightaway Instead he sits the customer downin his office and asks her what shersquos lookingfor Her needs and concerns emerge Here

seem dropped like manna from heaveninto the laps of the judges Students areencouraged to give little if any thoughtto the genesis of fact

In my Lawyering course1 I suggest apyramid-like nature of the factual universeat the peak of the pyramid lies the narrowslice of fact that is recited in the appellateopinion This slice is culled from theappellate record which in turn is drawnfrom the pool of facts that constituted theevidence at trial in the court below Thefacts found at trial come from an evenbroader source of ldquofactrdquo the discoveryprocess which yields facts that are relevantand not helpful and damaging At the widebase of the pyramid facts are born oftenthe product of interactions betweenattorney and witness Thus it is here thatpersuasion finds its roots

To introduce students to the concept

24 THE SECOND DRAFT

The Second Draft Bulletin of the Legal Writing Institute FromThe Florida State University College of Law Tallahassee Florida 32306-1601

Non Profit US Postage

PAID Tallahassee FL Permit No 55

To help us keep our mailing list current please keep us informed of changes in your address or in the addresses of your colleagues You can complete this coupon with any updates to your contact informa-tion and mail it to Professor Suzanne E Rowe 1221 University of Oregon School of Law Eugene OR 97403-1221 or you can send an e-mail to lwiaddresseslawfsuedu and your information will automati-cally be forwarded to the Second Draft editors and the LWI Program Assistant Lori Lamb

School

Street Address

CityState

PhoneFaxE-mail

Western New England University School of Law

Digital Commons Western New England University School of Law

2001

Modeling Placing Persuasion in Context

Myra G Orlen

Recommended Citation

24 THE SECOND DRAFT

To help us keep our mailing list current please keep us informed of changes in your address or in theaddresses of your colleagues You can complete this coupon with any updates to your contact informa-tion and mail it to Professor Suzanne E Rowe 1221 University of Oregon School of Law Eugene OR97403-1221 or you can send an e-mail to lwiaddresseslawfsuedu and your information will automati-cally be forwarded to the Second Draft editors and the LWI Program Assistant Lori Lamb

School

Street Address

CityState

PhoneFaxE-mail

The Second Draft Bulletin of the Legal Writing InstituteFromThe Florida State University College of LawTallahassee Florida 32306-1601

Non ProfitUS Postage

PAIDTallahassee FLPermit No 55

THE SECOND DRAFT 1

LEGAL WRITING INSTITUTE

SECOND DRAFT Bulletin of the Legal Writing Institute

Teaching Students to Persuade Used Cars and Recycled Memos Brian J Foley (Widener University School of Law)

Persuasion is getting someone to do what you want him or her to do There are lots of ways to persuade You can force someone at gun-point You can use your position of authority and bark orders You can pay someone to do something or otherwise bargain If you are an infant you can cry Or you can show the person that her doing what you want her to do will in fact meet her needs1

The last option is the only one relevant to law students learning how to convince judges Lawyers canrsquot point guns at judges canrsquot pull rank on judges canrsquot pay judges or

otherwise bargain for a favorable decision (read bribe) Crying is legal but rarely works

Given this understanding I introduce my first-year legal writing students and upper-level advanced brief writing class to persuasion with three baseline principles persuasion is something we all do all the time anyway persuading a judge is merely a highly stylized form of this activity and persuasion is the heart and soul the fun part of lawyering The following exercises are an effective way to convey these principles

EXERCISE 1 The Used Car Lot Have your students envision

Itrsquos hot and sun glints off the chrome and glass Immediately a salesman struts toward a car and promises ldquoI stand behind this car itrsquos great and it has new tiresrdquo Ask your students if they will buy the car Theyrsquoll probably say no Ask them to think why for a moment

Then move on to present another scenario with students envisioning themselves walking into a pleasant climate-controlled showroom This time the salesman shows no carsmdashat least not right away Instead he sits the customer down in his office and asks her what shersquos looking for Her needs and concerns emerge Here

CONTINUED ON PAGE 4

Creating Facts Bonnie M Baker (NYU School of Law)

I find that students enter law school with an intuitive understanding that the craft of the lawyer in role as an advocate is to persuade They understand the advocacy function as one of urging a particular view of the law or the facts on a neutral third party What uniformly comes as a shock to virtually all of my students is that the very creation of fact is inextricably linked to advocacy and persuasion

Law students find this an uncomfortable controversial proposition because they are accustomed to taking the existence of objective fact for granted The standard fare for first-year law students consists of a steady diet of appellate decisions where the facts in the record

seem dropped like manna from heaven into the laps of the judges Students are encouraged to give little if any thought to the genesis of fact

In my Lawyering course1 I suggest a pyramid-like nature of the factual universe at the peak of the pyramid lies the narrow slice of fact that is recited in the appellate opinion This slice is culled from the appellate record which in turn is drawn from the pool of facts that constituted the evidence at trial in the court below The facts found at trial come from an even broader source of ldquofactrdquo the discovery process which yields facts that are relevant and not helpful and damaging At the wide base of the pyramid facts are born often the product of interactions between attorney and witness Thus it is here that persuasion finds its roots

To introduce students to the concept CONTINUED ON PAGE 5

In This Issue Essays Teaching Students to Persuade 1 4-14 The Presidentrsquos Column 2 Professor Karon Bowdre Confirmed as US District Judge 14 Tips for New Teachers 15 From the Desk of the Writing Specialist 16 ALWD Manual International and Foreign Law Edition to be Published by Aspen 17 News Conferences and Meetings 18 Reflections and Visions LWI Biennial Conference 22 Calendar 23

THE SECOND DRAFT 23

CALENDAR

LWI Board Meetings

The Second Draft

2002 LWI Conference

From the Editors

THE LEGAL WRITING

INSTITUTE

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School

Street Address

CityState

PhoneFaxE-mail

2001


Myra G Orlen


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CALENDAR

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The Second Draft

2002 LWI Conference

From the Editors

THE LEGAL WRITING

INSTITUTE

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2001


Myra G Orlen


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