Teaching Legal Research and Writing · Critical legal writing professors might gain something from...

Teaching Legal Research and WritingPERSPECTIVES


What the Legal Writing Faculty Can Learn from the Doctrinal FacultyLouis J. Sirico Jr..................................................................................................97

TECHNOLOGY FOR TEACHING … Lori Shaw and the Search for the Golden Snitch: Using Class Web Sites to Capture the Teachable Moment

Lori Shaw .......................................................................................................101

TEACHABLE MOMENTS FOR TEACHERS … Celebrating the Value of Practical Knowledge and Experience

Mitchell Nathanson ..........................................................................................104

Active Learning Benefits All Learning Styles: 10 Easy Ways to Improve YourTeaching Today

Barbara Tyler ...................................................................................................106

Creating New Learning Experiences Through Collaborations Between LawLibrarians and Legal Writing Faculty

Susan King and Ruth Anne Robbins..................................................................110

What to Do When a Student Says “My Boss Won’t Let Me Write Like That”?Wayne Schiess ...................................................................................................113

You Are in the Business of Selling Analogies and DistinctionsSarah E. Ricks ..................................................................................................116

Determining the Scope of a Court’s HoldingM.H. Sam Jacobson..........................................................................................120

A Revised Concept Chart: Helping Students Move Away from a Case-by-Case Analysis

Deborah Shore..................................................................................................123

BRUTAL CHOICES IN CURRICULAR DESIGN …Top 10 Ways to Use Humor in Teaching Legal Writing

Sheila Simon ....................................................................................................125

WRITING TIPS … Sweating the Small Stuff

Stephen V. Armstrong and Timothy P. Terrell .....................................................128

ON THE LIGHTER SIDE … Eine Kleine Legalresearchmusik

James P. Fox......................................................................................................132

LEGAL RESEARCH AND WRITING RESOURCES: RECENT PUBLICATIONS

Donald J. Dunn...............................................................................................134

C O N T E N T S

VOL. 11 NO. 3 SPRING 2003WHAT THE LEGALWRITING FACULTY CANLEARN FROM THEDOCTRINAL FACULTYBY LOUIS J. SIRICO JR.

Professor Louis J. Sirico is the Director of Legal Writingat Villanova University School of Law in Villanova,Pennsylvania. He is author of Judging: A Handbookfor Student Clerks (LexisNexis 2002), and co-author ofLegal Writing and Other Lawyering Skills (3d ed.LexisNexis 1998); Persuasive Writing for Lawyers andOther Legal Professionals (2d ed. LexisNexis 2001);and Legal Research (2d ed. Aspen 2001). He is amember of the Perspectives Editorial Board.

An unfortunate theme often threads its waythrough discussions among legal writing faculty:We know far more about law teaching than ourdoctrinal counterparts. “They” teach boringclasses in a boring way and do not connect withtheir students. “They” are not interested ininteracting with their students except by way ofan outdated Socratic grilling. In fact, “they” aresimply uninterested in their students. Anotherissue seems to aggravate this thread. Becausemany Legal Writing departments are engaged in adaunting struggle for improved status within theacademic community, legal writing professorsmay tend to regard their association withdoctrinal colleagues as an “us vs. them”relationship. However, an us vs. them mentalitydoes not lead to “win-win” results.

Because I move in both legal writing anddoctrinal circles, I find the antidoctrinal rhetoricboth distressing and unconstructive. To be sure,most law school faculties probably have one ortwo curmudgeons on the doctrinal faculty whoare completely closed to any deviations from whatthey incorrectly perceive as the classic legaleducation. However, I have found that most ofmy doctrinal colleagues care deeply about theirstudents and think deeply about how they can

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Spring 2003 Perspectives: Teaching Legal Research and Writing Vol. 11

improve the educational experience that theirstudents are receiving. Along the way, they havelearned some lessons about educating futurelawyers.

When legal writing faculty distance themselvesfrom their doctrinal colleagues, they deprivethemselves of a source of valuable mentoring. Theyalso deprive their doctrinal colleagues of a richsource of teaching experience and insight.

A continuing dialogue among all facultymembers can benefit legal writing faculty in fourways. It can improve teaching, lead to a betterunderstanding of the substantive law that serves asa foundation for student assignments, offerguidance on producing academic scholarship, andhelp enormously in appreciating faculty politics.

Teaching

When I first entered the market for a teachingposition, I was asked a very standard question:When you think back on your law schoolprofessors, did any of them employ a teaching stylethat you would want to adopt? My answer was no.The teachers I liked best were the ones who tookthe material beyond the conventional learning andoffered me insights that I found exciting. Myfavorite teacher used a harsh Socratic method andeven made us stand up to recite. Perhaps theconclusion is that what you learn is moreimportant than how you learn it. However, eventhough that professor’s method did not prevent mefrom learning, it alienated too many of the otherstudents. In contrast, a successful teaching methodwould have guaranteed that a larger number ofstudents would have profited from what theprofessor had to offer.

Today, most of my doctrinal colleagues arebetter teachers than my old professors. Theyexperiment with different teaching methods, aremore in tune with their students, and are far moreentertaining. Like their counterparts at otherschools, they think about teaching. A search of theliterature uncovers considerable scholarship onteaching methods by academics who do not teachlegal writing. Just as legal writing professors havesomething to offer the legal academy, doctrinalprofessors also have much to offer.

Most legal writing professors are teaching asingle subject to a relatively limited number ofstudents. In contrast, almost all doctrinal faculty

are teaching two or three classes per semester to alarge number of students. As a result, veterandoctrinal teachers have encountered a greatervariety of teaching situations and a greater varietyof students. Therefore, they can prove to be asource of wisdom on how to handle manysituations, for example, a class that went wrong oran unpleasant dispute among students.

Perhaps the most challenging task for a teacheris dealing with the particularly difficult student.Although I have been teaching for more than twodecades, just when I think I have encounteredevery student personality, I come across a new one.Each student requires a different approach.Discussions with other teachers have alwaysprovided guidance.

As more legal writing professors begin to addsubstantive courses to their teaching loads, theywill appreciate the skills of the doctrinal professorwho is always juggling several courses. Two coursesare a surprisingly heavier burden than one course.Teaching doctrinal courses requires learning themost efficient ways to master the material, the bestways to keep current on the ever-changing law,and how to present substantive material effectively.These are not easy tasks. Fortunately, legal writingprofessors can consult colleagues who successfullyperform these tasks every day.

Even if the legal writing professor isaccomplished in employing interactive teachingmethods in legal writing courses, he or she maydiscover that transferring those skills to thedoctrinal classroom is no mean feat. Anexperienced doctrinal professor can prove aninvaluable adviser. The legal writing professor mayalso discover that not all doctrinal professors teachlike Christopher Columbus Langdell. Many havedeveloped interesting exercises and teachingmethods that their students find enjoyable andhelpful.1

Critical legal writing professors might gainsomething from auditing a few doctrinal classes.To paraphrase Oliver Goldsmith, they might cometo scoff and stay to learn.

Perspectives: Teaching Legal Research and Writingis published in the fall, winter, and spring of each year by West.Mary A. HotchkissEditorUniversity of Washington School of Law and theInformation SchoolSeattle, Washington

Editorial BoardBarbara A. BintliffUniversity of Colorado School of Law LibraryBoulder, Colorado

Donald J. DunnWestern New England CollegeSchool of Law LibrarySpringfield, Massachusetts

Penny A. HazeltonUniversity of WashingtonSchool of Law LibrarySeattle, Washington

Frank G. Houdek Southern Illinois UniversitySchool of LawCarbondale, Illinois

Mary S. LawrenceUniversity of Oregon School of LawEugene, Oregon

Judith MeadowsState Law Library of MontanaHelena, Montana

Helene S. ShapoNorthwestern UniversitySchool of LawChicago, Illinois

Louis J. SiricoVillanova University School of LawVillanova, Pennsylvania

Craig T. SmithVanderbilt University Law SchoolNashville, Tennessee

Kay ToddPaul Hastings Janofsky & WalkerAtlanta, Georgia

Opinions expressed in this publication arethose of the authors and should not beattributed to the Editor, the EditorialBoard, or West. Readers are encouraged tosubmit brief articles on subjects relevant tothe teaching of legal research and writing.Manuscripts, comments, and correspondenceshould be sent to Mary A. Hotchkiss,University of Washington School of Law,1100 N.E. Campus Parkway,Seattle, WA, 98105-6617, (206) 685-0119,Fax: (206) 616-3480,E-mail: [email protected] subscribe to Perspectives, use the card on the back cover of this issue or contact: Ann LaughlinWest Customer and Product DocumentationD5-S238610 Opperman DriveEagan, MN 55123(651) 687-5349E-mail: [email protected]

1 For a collection of practical ideas for innovative teachingacross the curriculum, see Gerald Hess & Steven Friedland,Techniques for Teaching Law (Carolina Academic Press 1999).

Vol. 11 Perspectives: Teaching Legal Research and Writing Spring 2003


“Mistakes

have lessons

to teach us.”

The Law

Doctrinal professors also can help in draftinglegal writing problems. Running a criminal lawproblem by a criminal law professor can helpensure that the problem is substantively correct.However, the doctrinal professor can assist in twoother ways.

First, the doctrinal professor is in a position toexplain the legal context of the narrow assignment.An understanding of this context can help thelegal writing professor predict where a studentmight misunderstand the law upon which theproblem is based. For example, the legal writingprofessor might draft a landlord and tenantproblem dealing with the implied warranty ofhabitability for residential property. If theprofessor is not well versed in property law, he orshe may not realize the risk that the student willbecome embroiled in cases dealing with thelandlord’s covenant of quiet enjoyment or thetenant’s right to repair and offset the cost againstthe rent in some jurisdictions. The legal writingprofessor would benefit from discussing theassignment with a property professor who cansuggest ways to avoid possible complications.

Second, because the doctrinal professorprobably has written many an essay exam, he orshe may be able to offer advice on how to draft theproblem—which shares essential characteristicswith an essay exam question—so that studentsavoid misreading the assignment or mistakenlyfocus on irrelevant or nonexistent issues. I suspectthat every doctrinal professor can recall at least oneessay question that went horribly wrong. He or shecertainly can recall essay questions that workedwell for most students, but left a significantnumber hopelessly confused. Mistakes have lessonsto teach us.

Scholarship

At any national meeting of legal writingprofessors, programs on scholarship always drawlarge crowds. As more schools offer tenure-trackpositions and long-term contracts to legal writingprofessors, the ability to produce high qualityscholarship grows in importance. Yet many in thelegal writing field have never served on a lawreview and have never attempted to publish a

scholarly article. They may not be entirely surewhat makes for a highly regarded academic piece.On the issue of scholarship, doctrinal colleaguescan offer assistance.

The fledgling author needs the answers to twoquestions: In the academic legal community, whatconstitutes good scholarship? At this particularschool, what constitutes good scholarship? It isimportant to understand the difference betweenthe two questions.

Of course, the second question is more critical.Some schools expect highly theoreticalexplorations. Others appreciate the value ofscholarship that is of practical value to the bench,bar, and teacher. Some schools expect a legalwriting professional to write about legal writingand such related fields as classical rhetoric andcognitive learning theory. Others want to seearticles that “crunch cases,” perform empiricalresearch, or offer theoretical models in traditionaldoctrinal areas. Some schools lower the standardsfor acceptable scholarship for legal writing faculty.Others do not. The time-honored advice is toconform to the faculty’s expectations, at least untilyou have job security. Members of the doctrinalfaculty are in the best position to explain whatthose expectations are.

In addition to giving general advice, thedoctrinal professor can provide two specificservices. First, he or she can point to examples ofscholarship that the faculty has deemed to beexcellent—articles by law school professors thatresulted in tenure or promotion. Legal writingprofessors often advise their students to examinemodel memos and briefs. In like manner, theyshould study successful models of scholarship.

Second, the doctrinal professor can agree toread and comment on drafts of articles by legalwriting professors. This is a common practicethroughout academia. Even very senioracademicians frequently ask for critiques by theircolleagues. At some schools, junior faculty insearch of tenure meet regularly in a small group tooffer suggestions on one another’s drafts. A well-vetted article stands a good chance of success.Every legal writing professor should seek andreceive feedback before searching for a publisher.



Law School Politics

Legal writing professors may engage in lawschool politics for a variety of reasons, rangingfrom gaining approval of a new course to gainingan upgrade in status. In such endeavors, theyshould keep in mind the observation of BritishLabor politician Ken Livingstone: “Politics is amarathon, not a sprint.”2 When launching a neweffort, the inexperienced professor must rememberthat he or she is entering a marathon that probablybegan some time ago. To mix metaphors, evenseemingly new issues carry baggage from the past.Seasoned and careworn doctrinal professors canexplain what that baggage is.

As an example, take an effort to upgrade theprofessional status of the legal writing faculty. Thedoctrinal professor may remember what transpiredthe last time this issue arose, how various peoplevoted, which arguments proved compelling, andwhich did not. Even if the legal writing professorwas at the law school at the time, he or she maynot have been privy to all the public and privatediscussions and maneuvers that took place. He orshe may not know whether any hard feelingsresulted from the debate, much less how certainkey faculty members now feel about the issue. Heor she may not realize that certain facultymembers always tend to vote together or onopposite sides of any hotly debated issue.However, a trusted doctrinal colleague may bewilling to provide this information, informationthat is critical to the success of the currentendeavor.

In July 2001, the Association of Legal WritingDirectors hosted a conference with the theme,“Erasing Lines: Integrating the Law SchoolCurriculum.”3 The participants discussed themany ways in which the artificial line betweendoctrinal and skills courses is disappearing. Onehappy consequence of this change in legaleducation is that both doctrinal and skills teacherswill inevitably work more closely with one anotherand learn from one another. Not only can thedoctrinal faculty learn from the legal writing

faculty. The legal writing faculty can learn fromthe doctrinal faculty.

© 2003 Louis J. Sirico Jr.“When

launching a

new effort, the

inexperienced

professor must

remember that

he or she is

entering a

marathon that

probably

began some

time ago.”

2 Oxford Dictionary of 20th Century Quotations 192 (Oxford1998).

3 The proceedings are published as Erasing Lines: Integratingthe Law School Curriculum, 1 Journal of the Association of LegalWriting Directors (2002).



LORI SHAW AND THESEARCH FOR THE GOLDENSNITCH: USING CLASSWEB SITES TO CAPTURETHE TEACHABLE MOMENTBY LORI SHAW

Lori Shaw is a Professor of Law at the University ofDayton in Dayton, Ohio.

Technology for Teaching … is a regular featureof Perspectives, designed to introduce and describe theways in which teachers of legal research and writingare using technology to enhance their teaching.Readers are invited to submit their own“technological solutions” to Mary A. Hotchkiss,Perspectives Editor, University of WashingtonSchool of Law, 1100 N.E. Campus Parkway,Seattle, WA 98105-6617, phone: (206) 685-0119; fax: (206) 616-3480, e-mail: [email protected].

OK … I’ll admit it. The title of this article is abit misleading. Most legal writing professionals donot enjoy Potteresque adventures. (Although ouroffices may resemble the cupboard under thestairs.) Nonetheless, like Harry, we are—or shouldbe—forever in pursuit of something golden, theelusive teachable moment.

For teachable moments must be pursued. Likethe golden snitch, they do not simply fall into ourlaps. Have you ever looked up the word “teach” inthe dictionary? Among its definitions is “tocommunicate.” But communication requires botha speaker and a listener. A teachable moment canoccur only when both teacher and student areready to communicate. For the past five years, Ihave used my class Web site in general and mythreaded discussion list in particular to capturemany teachable moments.

Chapter One: The Quest

As teachers, we all seek those teachablemoments. Although many occur in the classroom,the classroom has its limitations. We stand ready toshare our wisdom with our students. We do ourbest to anticipate the challenges students will facein completing an assignment and to prepare themto meet those challenges. Unfortunately, a majorcomponent of the communication equation isbeyond our control. We may be ready to teachabout synthesis or citation form, but at thatmoment, a student may not be ready to learn.

The reality is that law students are constantlybombarded with new information. They cannotpossibly process every piece, so they filter out thatwhich they deem unimportant. Regrettably, theirjudgment is not always sound. Students may hearyour brilliant explanation of how to structure athesis paragraph without absorbing it. Theminutiae required to compose an effective thesisparagraph become truly relevant only whenstudents must compose a thesis paragraph on their own.

Ultimately, the day (or more likely the night)comes when students need that brilliantexplanation. As they are toiling away on theirmemos, the realization strikes that they have noclue as to some aspect of the thesis paragraph.Students want to write a good memo and wouldgive anything for some guidance. They are notonly ready to listen; they are anxious to listen. It isthe perfect teachable moment.

It is also Friday night at 10 p.m. Our studentsare most likely to focus on major writingassignments when they have large blocks ofavailable time—that means evenings andweekends. At the very moment a student is mostready to learn, the classroom doors are locked tightas a drum.

So how do we respond to this opportunity?One response is to ignore it. Legal writingprofessionals work long, hard hours, and it is farfrom unreasonable for us to say, “Enough.” Wehave a right to lives outside of the classroom. Butthat is not how most of us are made. We teachbecause we love it, and we cannot resist anyopportunity to capture that golden snitch. Wewant to be there when our students are ready to learn.

“We may be

ready to teach

about synthesis

or citation form,

but at that

moment, a

student may

not be ready

to learn.”

T E C H N O L O G Y F O R T E A C H I N G . . .



Chapter Two: The Solution

The question then becomes how to be there.For several years, I attempted to “be there” byanswering e-mail questions and distributing myresponses to an e-mail list consisting of my entireclass. I knew that if one student had a question,chances were that many students had the samequestion. Perhaps I could capture more than onesnitch with a single response. However, not everystudent had the same question at the samemoment, and many students deleted my messagesonly to pose the same question later. In short, an e-mail system did not prove to be the most efficientmethod of snitch catching.

Then along came the Web site era and theoption of creating a threaded discussion list.Within days of my first use, I was sold on the list’svalue. Like an e-mail message, a threadeddiscussion list gives students the opportunity topose questions when they arise. Unlike an e-mailmessage, a threaded discussion list provides apermanent record of questions and responses.Many students have shared that they planned topost a question only to see that it had already beenasked and answered. They received the instructionthey needed at the very moment they were seekingit, and I was not troubled with duplicate questions.

A threaded discussion list also promotesinteraction among the students. Students can andshould learn from one another. Simply reading aclassmate’s question can take a student down a newpath, and that student can add his or her ownquestions to the thread. I have even had studentsbeat me to the punch by attempting to answertheir classmates’ questions. More often than not,their answers are dead on.

Web sites offer a myriad of additionalopportunities for communication. For instance,my site serves as an ever-evolving coursesupplement, providing students with unlimitedaccess to handouts, assignments, PowerPointpresentations, and other course materials. I haverequired students to post collaborative exercises onthe site and allowed them to “interview” clients viathe site. Finally, both my teaching assistants and Ischedule student conferences via the site. Whenready to learn, a student can find a wealth ofinformation on the site.

Chapter Three: The Dilemma

If you decide that a course Web site is right foryou, your next step is to select a vehicle for creatingthat site. One option may be to create a private siteusing your school’s webmaster and other resources.Another option is to use one of the commercialservices, The West Education Network® (TWEN®)or the LexisNexis™ Web Course. Each option hasits own advantages.

The use of commercial services has engendereda sometimes heated debate. Many in the academyargue that by choosing one of these services ateacher is giving its vendor a commercial advantagein the sale of research products. Students mayperceive the teacher’s choice of services to be aproduct endorsement. Even more problematic, thedirect links existing between the Web service andthe vendor’s research products make it more likelythat students will develop a comfort level withthose products.

The decision as to whether the advantages ofusing a commercial service outweigh this concernis yours alone. Personally, I view my students assophisticated consumers who are not undulyinfluenced by my choice of a commercial service. Imake it abundantly clear that employers will expectthem to be well versed in more than one researchsystem, and I require them to use both LexisNexisand Westlaw®. In my experience, when studentsfavor a particular product, it is because they findthat product to be superior. They make up theirown minds.

I avail myself of the TWEN service because ofits ease of use for myself and my students. My goalis to communicate with my students, not tobecome a webmaster. This service gives me thetools to set up an incredibly sophisticated site inless than an hour. Creating a private site wouldlikely take far more time and given my lack ofexpertise, might well result in an inferior product.Further, a private site would lack the 24-hourtechnical support provided by the vendor. When atechnical problem occurs at 2 a.m., I want mystudents to be able to obtain help without myintervention.

Whether you opt to go private or commercial,please know that creating your own Web site isdoable. You need not be a computer nerd toproduce a terrific site. In short, do not allow yourfears to rule the day.

“A threaded

discussion list

also promotes

interaction

among the

students.

Students can

and should

learn from one

another.”



Chapter Four: Baiting the Trap

Your threaded discussion list may be anaesthetic and technological wonder, but if yourstudents never use it, the snitch will once againevade your grasp. Fear not. By following a fewsimple rules, you can position your site at the topof your students’ “favorites” list.

One, require your students to post at least onemessage. I often begin the school year by showing avideotaped client interview. For their firsthomework exercise, students post their reactions.One problem-free posting is usually all that it takesto calm the fears of my computerphobes. In fact,former computerphobes often become the site’sbiggest boosters.

Two, allow anonymous postings. Students fearlooking foolish. Many are afraid to ask questions inclass or even in your office. In five years ofpermitting anonymous postings, I have never hadany serious problems with inappropriate postings.A key to my success is that I work hard to set aprofessional tone. Take every question seriously,and try to end each response by thanking thequestioner. When someone has asked a particularlygood question, say so.

Three, do not respond to e-mail questions. Forthe site to succeed, it must be perceived as the placeto go for information. You must build a criticalmass of questions and answers. Early on, I tell mystudents that they may not e-mail me withquestions relating to their assignments. Studentswho ignore this rule receive a polite responseindicating that their questions were so good that Iposted them and my response on TWEN.

Four, check the site faithfully. Students will notask questions if they do not expect to receive timelyanswers. Note that a difference exists betweenchecking faithfully and checking obsessively. Mostdays, checking once or twice will be sufficient. Theweekend before a paper is due, you might wish tocheck more frequently. Your students’ responsemay surprise you. They are genuinely and openlygrateful for your efforts outside the law school.

Chapter Five: The Happy Ending

Will a course Web site capture every teachablemoment? No. Can it make a difference? I think so.During the past semester, counting my own visits,my site enjoyed more than 10,000 “hits.” Thethreaded discussion page alone had nearly 5,000hits. I may not catch the golden snitch every time,but my Web site has certainly increased my odds.Harry would be proud.

© 2003 Lori Shaw

“By following a

few simple

rules, you can

position your

site at the top of

your students’

‘favorites’ list.”



CELEBRATING THE VALUE OFPRACTICAL KNOWLEDGEAND EXPERIENCEBY MITCHELL NATHANSON1

Mitchell Nathanson is a Legal Writing Instructor atVillanova University School of Law in Villanova, Penn.

Teachable Moments for Teachers ... is aregular feature of Perspectives designed to giveteachers an opportunity to describe a special momentof epiphany that changed their approach topresenting a particular topic to their students. It is acompanion to the Teachable Moments forStudents column that provides quick and accessibleanswers to questions frequently asked by students andother researchers. Readers are invited to submit theirown “teachable moments for teachers” to the editor ofthe column: Louis J. Sirico Jr., Villanova UniversitySchool of Law, 299 N. Spring Mill Road,Villanova, PA 19085-1682, phone: (610) 519-7071, fax: (610) 519-6282, e-mail: [email protected].

What price knowledge?—The theorist

What price avocados?—The realist

The move into the hallowed halls of academiawas a daunting and intimidating one for me. I hadspent the entirety of my 10-year professional careerup to that point in the scrum, so to speak, first as alitigator and then moving in-house to handleenvironmental coverage claims, where it was dogeat dog (or worse, as Woody Allen once said, whereit was “dog doesn’t return other dog’s phonecalls”2). I had written a few pieces here and therealong the way but nothing to match the scholarlyoutput of even the most lackadaisical doctrinalprofessor. Worse, I had done very little “deepthinking” on the larger issues that face us as asociety. If asked, I would not know how to solve

our health care crisis, nor did I believe that I hadanything worthwhile to add to a debate on theEstablishment Clause. In short, I feared that I hadvery little to offer the next generation of practicingattorneys that I was assigned to teach.

Oh sure, I figured, I knew how to write andthat, such as it was, got me here and would allowme to fulfill my teaching responsibilities, at least onthe most basic level. But my concern was greater:how would I get them to listen to me, to respect mein light of the brilliance they would no doubtencounter in each of their doctrinal courses?Surprisingly, I found my answer not far into myfirst semester of teaching, when I was forced to veeroff course, away from my lecture notes, as a resultof a perturbed student’s question.

The topic was the “CRAC” analytical format3

and a discussion of why this format was preferableto the style most students had become accustomedto using in college. I handed out two sampleparagraphs, one descriptive and retelling the chainof events chronologically, the other probative andusing the CRAC format, then asked the studentsto state which style they preferred. Notsurprisingly, a majority chose the descriptiveparagraph, arguing that it was easy to follow andpresented a “comfortable” format. Attempting touse this as a teaching tool, I then tried to explainthe philosophy behind the CRAC format (i.e., thisis the way lawyers think when they approach aproblem) to no avail.

I tried everything I could think of in an effortto persuade them to accept the theory behind theCRAC format but they just wouldn’t buy it.Regardless of the philosophical rationalizationproffered in support of the CRAC format, it wasmet with shaking heads and looks of disdain. Andthen, way in the back, a young woman raised herhand in obvious annoyance. “I was an Englishmajor,” she said. “I know how to write. Whyshould I write like that when it seems so stilted and

“I feared that I

had very little to

offer the next

generation of

practicing

attorneys that

I was assigned

to teach.”

T E A C H A B L E M O M E N T S F O R T E A C H E R S . . .

1 The author is grateful to Villanova Law School ProfessorLouis Sirico and Dean Diane Edelman for their valuable adviceand feedback in the preparation of this article.

2 See Crimes and Misdemeanors (Orion Pictures 1989)(motion picture). Really. See it. It’s quite good. You’ll thank me.

3 Conclusion, Rule, Analysis/Application of Rule,Conclusion Restated. See Richard K. Neumann Jr., LegalReasoning and Legal Writing §10.1 (3d ed., Aspen Law & Business1998) (discussing the proper structural format of an officememorandum Discussion section). See also Annie Hall (UnitedArtists 1977) (motion picture), because after reading all of thistechnical stuff, you’ll probably want to treat yourself to a goodlaugh. But don’t see Interiors (United Artists 1978) (motionpicture), because Woody isn’t in that one and it is extremelydepressing.



repetitive?” she asked. And that’s when, withnothing left in my arsenal, I blurted out the onlyanswer I could think of: “Because your boss isbilling the client $400 an hour and your clientwon’t pay him to spend 20 minutes poring overyour memo just to find out what your conclusionis.” With that came silence. I looked around theroom. Everyone sat up in their seats. All eyes wereon me. The resistance in the air had dissipated. Atthat moment, I realized that, contrary to myassumptions, I had something quite valuable tooffer my students: the wisdom that comes withsignificant, recent, practical experience.

Don’t get me wrong; I’m not one for warstories, per se. However, I found that allowing thestudents to peek into my former life just a littlegave me the “street credibility” I needed toconvince them to put their trust in me. Much tomy surprise, I soon discovered that providing apractical basis for my advice necessarily lent muchof it greater weight than might otherwise have beenthe case. For example: the CRAC format worksbecause I used it for years; paraphrase rather thanquote whenever possible because judges prefer toknow what a case means rather than have itparroted back to them; always make sure youcompletely understand an assignment beforeheading off to the library to avoid the wrath of anangry partner who, by the way, may very well holdthe fate of your professional future in his or herhands. The practicalities of modern law practice arethe overarching topics of concern of many oftoday’s students. And we, as legal writingprofessors, are often among the most qualifiedmembers of our faculties to speak on this subject.

In addition, we’re often the most accessible.Because we teach smaller classes and are generally(with apologies to the elder statespeople in thefield) closer in age to the typical first-year student,we’re the ones they feel most comfortable speakingwith. They want to know what their lives are goingto be like in three short years and we’re the oneswho can best tell them. Not the third years whosmugly think they know it all, not the law firmrecruitment attorneys who paint a smile oneverything, and most assuredly not their father,mother, aunt, uncle (fill in the filial blank) whohasn’t Shepardized® a case since the poor studentwas in diapers. Not them—us. Accordingly, weshould feel comfortable stepping into the breach.

By doing so, we are not only providing a much-needed service to our students, we are engenderingthe respect we not only desire but desperately needin order to teach effectively.

Of course, there is the fear that by labelingourselves experts in all things practical, we arenecessarily diminishing our role as scholars withinthe academy. However, these two roles are notmutually exclusive. A quick perusal through anylaw school Web page demonstrates that there aremany members on most, if not all, doctrinalfaculties who likewise had significant practicalexperience. The stereotypical road to academia(federal clerkship, one to two years as an associateat a large firm, minimal practical experience to callupon) is no longer applicable even to them.Accordingly, the age-old notion that practicalexperience is “beneath” the scholar is rapidlybecoming outmoded. Nevertheless, our past livesas practitioners are still viewed by some within thelegal writing field as our “dirty little secret” thatserves to undermine our status as academics. In myexperience, I have found just the opposite to betrue, at least as this issue pertains to students. Theyrespect our backgrounds and what that dimensionadds to their law school experience; they are gladthat we are here to tell them what it is like “outthere.” We should feel honored whenever we arecalled upon to discuss the issue that is mostimportant to a majority of our students. It wouldbe a shame, however, if we refused to answer that call.

Unbeknownst to me, I learned that day in classthat I brought something of great value with mewhen I arrived on campus a year ago. “Life lessons”are so named for a reason and the opportunity toeducate others based on personal experience is onethat, in my opinion, should not be missed. So longas care is taken not to overdo it and transform theclass into a recitation of personal war stories, theoccasional anecdote will serve to support whateverparticular point is being stressed in class as well asthe professor’s overall authority to make it.

© 2003 Mitchell Nathanson

“The practicalities

of modern law

practice are the

overarching

topics of

concern of

many of today’s

students.”



ACTIVE LEARNING BENEFITSALL LEARNING STYLES: 10EASY WAYS TO IMPROVEYOUR TEACHING TODAYBY BARBARA TYLER

Barbara Tyler is the Director of the Legal Writing,Research and Advocacy program at the ClevelandMarshall College of Law in Cleveland, Ohio.

Introduction

Two things made me a better teacher: my blindstudent and my deaf student. I realized whenforced to confront my deficiencies several years agothat I did not speak enough for the blind student’sauditory needs, nor did I provide enough imagesfor the deaf student’s visual learning needs. Icorrected those deficiencies.1 Yet, I was stilldissatisfied with the extent of my students’ retainedknowledge when I assessed their learning throughclass questions, exercises, quizzes, and tests.

Then I learned that I was a kinesthetic learner. Ibegan to read about learning styles and found thatmy own impatience and inability to learn, coupledwith the restlessness I felt unless I wrote thingsdown and read them myself, signaled a kinestheticlearning style. This discovery triggered my owndecision to add a new mode of delivery requiring“active learning” to each class I teach.

Thus, three styles of learning are representedabove: auditory, visual, and kinesthetic. Somestudents learn best by seeing others do something.These students favor carefully organizedinformation and prefer to write down what ateacher tells them.2 In class, they are the quiet onesand are seldom distracted by sound.3 These visuallearners contrast with the auditory learners who donot bother to look at what the teacher does or takenotes. The auditory learners depend upon their

ability to hear and remember; they are talkativeand easily distracted by noise.4 Kinesthetic learnerstend to learn by doing and are impatient andagitated unless they can move and do.5

But few students exclusively exhibit only onetype of learning style. So in order to meet the needsof all types of learners, a teacher must be versatile.Studies show that students in lecture classes aremost attentive in the first 10 minutes and thatinterest wanes greatly after that.6 When you teachusing both auditory and visual dimensions, themessage is reinforced by two systems of deliveryand you have a greater chance of satisfying thevaried learning styles of students. You can do thatby using lecture combined with movies,transparencies, slides, or PowerPoint presentations.But merely hearing something and seeing it is notenough to learn it, because lectures with visuals arepassive learning exercises. The learner comes to theexercise without being engaged in it.

Active learning cannot occur without studentparticipation. That is the beauty of it.Incorporating active learning exercises into eachand every class is easy to do, applies to thekinesthetic learner who learns by directinvolvement and concrete activity, and greatlybenefits all other learning types as well sincetechniques often employ both speech and visuals.Better yet, active methods provide the teacher withthe ability to get almost instant feedback on howwell the lesson is understood by all.

Lastly, using active learning can involveindividual students or groups. The feeling of safetyand security in allowing learning to take place in asmall group enables students to feel secure, becomeinvolved, discuss issues with others, and best ofall—teach others, which is the most desirable wayfor anyone to permanently master a subject.7

Suggestions follow using concrete examples ofactive learning that you may implement in yourclass to involve and challenge students either

“Studies show

that students

in lecture

classes are

most attentive

in the first 10

minutes and

that interest

wanes greatly

after that.”

1 Our classrooms are now equipped with smart podiumsthat allow you to place any document on a screen and project it.That innovation has allowed us to place student work or textsright on the projector for all to see and better involve the class inevery aspect of learning.

2 See Mel Silberman, Active Learning, 101 Strategies to Teachany Subject 4–5 (1996).

3 Id. at 4.

4 Id.5 Id.6 See Wilbert J. McKeachie, Teaching Tips 70 (10th ed.

1999). 7 See The Learning Pyramid, National Training Laboratories,

Bethel, Maine (2002). The average retention rates for subject matterteaching styles are as follow: lecture, 5 percent; reading, 10 percent;audio-visual, 20 percent; demonstration, 30 percent; discussiongroup, 50 percent; practice by doing, 75 percent; and teachingothers, 90 percent.



individually or in small groups withoutintimidating them. No matter how your classroomis set up, you can ask students to seat themselvescloser together or pair students up to takeadvantage of active learning exercises that involvepartners or small groups. The key to an engagedclass is to use a variety of tactics and learningmodalities involving individuals, partners, andsmall groups to interest the class and encourageengagement.

Individual Active LearningActivities

1. Encourage Reading the Text: Many of mycolleagues note that law students do not read forlegal writing classes. As one of my colleagues stateda while back, “Test them and they will read.”8

Begin using this tactic early on for readingcompliance. The strategy for your lecture shouldinclude statements tying the text into the lecture:“As you read in chapter seven in your text ...” or“Explain what the authors meant when theydefined secondary sources.”9 But your goal here isto ascertain what the class members thought wasthe most important point they learned fromreading the assigned chapter in your chosen text.Give the class five minutes to write on a file card.Collect the cards and pull some answers fromthem. Place the cards on a projector so the classmay see them and respond. This method workswell because it also addresses the need for studentsto read the materials before class and comeprepared to discuss the concepts. Use thistechnique early in the course and repeat it often.

2. Teach Citation Rules: Always followteaching and discussing a citation rule in whichyou used an overhead or handout, or you wrote onthe blackboard, by testing understanding with anin-class exercise focusing on the rule(s) taught.Bring individuals up to the front of the class towrite on the board or on the worksheet displayedon an overhead and supply answers to the specificcitation exercise. This method works well sincewrong answers are often duplicated by others inthe class and this visual exercise reinforces correctapplication of rules to examples. (This can be usedfor small groups as well.)

3. Guide Note-Taking: This approach workswell in the beginning of first-year law classes toencourage listening and note-taking. Early on inyour class, optimally in orientation, supply ahandout that summarizes the main points of yourlecture. Instead of supplying the answers yourself,leave some portions blank. For example, when youteach the class about laws, weight of authority, orgovernment or court structure, prepare thehandout to require the students to fill in theblanks. The three branches of government are__________, ____________, and ___________.Primary authority is defined as _______________.Diagram the court system levels in the state of____________. After the class, or at the next class meeting, hand out the blank form andchallenge the students to fill in the blanks frommemory. This questioning is a great tool to seewhat information needs to be accentuated infuture classes.

4. Assign Peer Teaching: Teaching othersprovides the most beneficial and immediate use oflearning to the student. Select individuals topresent topics to the class and limit the time theymay use to do so—for example, allow 10 minutes.The topics can include such varied items asgrammar rules, paragraph formation, sentencestructure, use of punctuation, editing writtenwork, citation form, or any other area that engagesthem. Urge the student teachers to create visuals,handouts, and exercises to assess learning as well asto leave time for questions afterward. You mustgive them a time limit for their presentation andyou may devote class time to one or two in-classstudent teachers each week.

5. Use One-Minute Papers:10 These very shortpapers can do much to assess your clarity in alecture presentation. They provide you withfeedback on the success of your presentation. Justbefore the end of class, provide students with twominutes to answer no more than two questions youpose. For example: 1) What was the mostimportant concept you learned today? 2) What isstill unclear to you? 3) Do you have any questionsto suggest? Beginning with the next class, you may

“The key to an

engaged class

is to use a

variety of tactics

and learning

modalities

involving

individuals,

partners, and

small groups

to interest the

class and

encourage

engagement.”

8 I do not remember exactly which legal writing colleaguewas responsible for this bon mot.

9 See McKeachie, supra note 6, at 144–48.

10 David Royse suggested this idea and the name one-minute papers in his book Teaching Tips for College and UniversityInstructors 67 (2001)



target any points that were not clearly understoodby all.11

Group Learning Activities

1. Build Teams for Collaborative Learning: Itis key to new law students to feel accepted, safe,and connected to one another and to be includedin the group as members. In orientation, pair twostudents and begin with a questionnaire that asksseveral interesting things about each student.12

Have two students sitting next to one anotherexchange their questionnaires when completed.Have the students meet and then introduce eachother and describe each other’s background andinterests to the rest of the class. Often alliances areformed early on in this way since otherwiseunknown connections or similarities are broughtto light through these introductions to the class.Connection to the group helps meet the socialneeds of new law students and leads to furtherpositive connections with one another.13

2. Formulate Group Issues and Holdings:Divide the class into small groups of three to fivestudents. Articulate the strategy: to learn from eachother about discrete case analysis points. Set a timelimit of 15 minutes. Have each small groupappoint a scribe. After teaching students that rulesfrom cases are incorporated into holdings with theaddition of the salient facts of the case, havestudents discuss and write out the rule gleanedfrom the case as well as a fact-specific holding foran assigned case. Then call each group scribe up tothe front of the class to post the group’s product onan overhead, or write it on the board. Let the classvote on the best rule or holding. This exercise alsoworks very nicely when formulating Issues orQuestions Presented statements as well.

3. Use Peer Editors: Divide the class into smallgroups, perhaps even groups of two. Set a timelimit for the exercise. Hand out to each memberbefore this class the standard editor’s marks sheet sothey may familiarize themselves with these. For theexercise, one must create a worksheet for students

to edit each other’s work. Limit the editing to oneor two pages of text at the most. Assign eachstudent to meet with others and critique thewritten product you assigned asking several guidedquestions that you posed.14 Retrieve the productand the peer editing worksheet after having thestudents staple them together.

4. Sharpen Fact Identification: Your goal is toget better factual analysis. Well before the firstobjective written analysis is required, have the classread one or two cases that include a short test, orstatutory or common law elements. Divide theclass into small groups and provide each groupwith a short fact pattern. Encourage each group toidentify what facts in the fact pattern you suppliedto them may be utilized to prove or disprove eachof the elements or parts of the test in the cases. Youmay even suggest that students make a small chartand begin with each case’s facts and then insert thesalient facts of your fact pattern in its own block.Have each group list the salient relevant facts andto which element they can be applied. This alsocan work well with more complicated fact patternsand persuasive writing later in the year. (Makecertain the groups insert facts to meet eachelement, including mentioning ages and otherthings in statutes regarding “child endangerment,”for example).

5. Develop Games and Offer Prizes:a. In Orientation: I adore games and prizes.

Students seem to as well. In order to encouragecase reading early on by students in orientation, Ihand out a packet of 10 unique and funny casesthat I have found and ask questions about them.(Under the case named Fisher v. Lowe15 what poem(“Trees”) is parodied here? Is the author of theparodied poem (Joyce Kilmer) a male or female?)The winner or winners may pick prizes rangingfrom a law school T-shirt to library safe beveragecontainers.

“Connection

to the group

helps meet

the social

needs of new

law students

and leads to

further positive

connections

with one

another.”

11 Id.12 We usually ask the following of our students: the home

state, undergraduate degree (current work experience for nightstudents), hobbies, and favorite movie or music groups, just to namea few items.

13 See generally Abraham Maslow, Toward a Psychology ofBeing (1998).

14 For example, questions for the reviewer could be: Whatskill should the writer work to improve? What skill does the writerperform well? Are topic sentences clear and well developed?Questions for the writer to answer may be: What questions do youhave regarding the comments? Do you agree with the editor’sremarks? Did you find the comments helpful?

15 333 N.W.2d 67 (Mich. Ct. App. 1983) (holding, written inverse, based upon a parody of “Trees” by Joyce Kilmer, a well-knownmale poet, that defendants were immune from tort liability fordamage caused by their automobile to a “beautiful oak tree.”)



b. Learning Tournaments Later: Jeopardy orCarnival:16 Consider having a citation Jeopardy orresearch carnival once or twice during the schoolyear. It makes retention of citation and othermaterial less painful and more fun. The goal is toreview citation or other important concepts in legalwriting. Groups can be assigned before or duringthe class at random and citation manuals areallowed if correct citation is the goal.

c. Citation Stations: Usually about five separatecitation stations are set up in advance of the class.(Helium balloons are a nice touch for each station.)Each group is assigned at random to a station fromwhich it begins. Each station has a separate citation(or other) task. Each group gets copies of a mastersheet with spaces for all five station answers. Atfive-, 10-, or 15-minute timed intervals (dependingon your available class time and the difficulty ofthe assignment), the citation or learning stationsrotate until each group has visited each station andfilled in the entire sheet. The groups correct theirown sheets on their honor, and the group with themost correct answers wins. You may choose to giveprizes to all participants, allowing the first-placegroup to select its prizes first. Or, you may chooseto award extra points to the first-place groupmembers, with lesser points conferred on thesecond-place team.

d. Research Stations: You can also use the sameconcept for reviewing research modalities askingquestions regarding secondary sources, statutes,reporters, binding and persuasive authority, thecourt systems, and so forth in separate groupstations. Some of my colleagues have Gender Wars,in which they pit the males against the females.The students take these challenges very seriously.But the contests are actually very therapeutic sincestudents are also able to laugh a lot and releasepent-up pre-exam anxiety as well.

Conclusion

Law students learn best with practical andreal-world tasks that build on what they know. Alecture format relegates students to learning

passively. Even adding visuals only increaseslearning somewhat. Active learning is a means tothe laudable end of engaging students, increasingtheir retention, and providing information to alltypes of learners. Use multisensory techniques tomeet student needs: variety adds spice to learning.You can decide what constitutes the right mix ofauditory, visual, and kinesthetic or active learningthat is best for your class.

© 2003 Barbara Tyler

“Law students

learn best with

practical and

real-world

tasks that build

on what they

know.”

16 My colleague Beverly Blair was one of the first individualsI know to employ the Citation Carnival and provide simple prizesfrom small dime-store items to jars of cookies. She indicated tome that she read the idea in a legal writing newsletter from themid 1970s. She also likes to add a twist to the carnival by dividinggroups by gender, calling it Gender Wars.



CREATING NEW LEARNINGEXPERIENCES THROUGHCOLLABORATIONSBETWEEN LAW LIBRARIANSAND LEGAL WRITINGFACULTYBY SUSAN KING AND RUTH ANNE ROBBINS

Susan King is an Assistant Professor and ReferenceLibrarian and Ruth Anne Robbins is a Clinical Attorneyand Supervising Attorney at the Rutgers Law DomesticViolence Project at the Rutgers School of Law–Camden inCamden, N.J.

There are very few articles discussing truecollaboration between legal writing professionalsand law librarians. In particular, the kind ofcollaboration that creates an environmentstructured to present multiple opportunities forengaged research is seldom mentioned. Althoughwe have read articles written by legal writingprofessionals teaching research and by librariansteaching legal writing, we are not taking sides inthe debate over who should teach research.1

Instead, this article focuses on what we believe isoften overlooked in the ongoing and informaldialogue: the potential integration of the twodisciplines in course design and the resultingbenefits to students of a richer, more completeunderstanding of legal research.

Given our experience in the classroom and atthe reference desk, we saw a need for moreintensive instruction in legal research. For thatreason, we have established a collaboration that isless formal than co-teaching, and yet more formalthan that anticipated by the establishedcurriculum, a once-per-semester drop-by. We worktogether toward several goals: reviewing andstrengthening the students’ basic legal researchskills; inviting students to expand their researchskills into new and different areas; asking students

to research in different media (print sources,databases, Internet sources); and makingtransparent the process of research. Thiscollaborative piece occurred to us several years agoand since then we have established a synergy thatplays to both of our strengths and which we believeresults in a more well-rounded approach to legalresearch and writing than we could have doneindividually.

A Historical Approach

We have been actively collaborating for severalyears on research assignments for a required first-year legal research and writing course as well as anadvanced brief writing course. Our workingtogether began as a chance assignment. At Rutgers-Camden, each law librarian is paired with one ofthe legal research and writing faculty. Usually, thisconnection goes no further than the librarian firstmaking a brief appearance in the legal research andwriting class early in the semester to welcome thestudents, and then again acting as a moot courtjudge later in the second semester. On occasion,the legal writing faculty member might contact thelibrarian with a quick question, e.g., “Do we havethe Iowa Shepard’s ®?”, but that is the extent of thepartnership in most cases. The librarianpresumably has copies of major research andwriting assignments but is not otherwise involved.

This approach does not emphasize enough thelibrarian’s expertise. Moreover, the first-yearstudents are often too overwhelmed to really takemuch note of this phenomenal resource at theirdisposal. Academic integrity issues may alsoconcern the students; they may feel that they aresomehow “cheating” if they ask a librarian foranything other than simply “Where are theregional digests?” Thus the students do not becomeaccustomed to viewing librarians as anotherweapon in their research arsenal. If these futurelawyers do not learn early in their careers what alibrarian can offer in the research process, they maynot consider librarians as resources in the future.

Our Solution: MethodologicalCollaboration

The type of collaboration we advocate does notnecessitate moving directly from infrared toultraviolet on the spectrum of research instructionduties. We are not talking about foisting all

“Given our

experience in

the classroom

and at the

reference

desk, we

saw a need

for more

intensive

instruction

in legal

research.”

1 A review of back issues of Perspectives: Teaching LegalResearch and Writing proves this point. Many of the articles discusshow best to teach students to do legal research. Some articles arewritten by law librarians and some are written by legal researchand writing instructors. Few are written jointly and none discussesapproaching the issue collaboratively.



research education upon librarians at those lawschools where the librarians do not normally teachresearch to the entering class. Instead, at Rutgers-Camden, where legal writing professionals are alsoprimarily responsible for teaching legal research, wehave jointly designed a creative and powerful seriesof learning experiences for students in which weclearly demonstrate how a lawyer actually doesgood research. With a major goal of enhancingstudent comprehension of the synergy betweenthorough research and effective writing, we jointlydesign assignments with the intention that thestudents will face gaps in their research know-how,both with respect to legal and nonlegal research.

In order to reach this goal, we have shifted theparadigm (legal writing and research instructors inthe classroom, librarians in the library) andhighlighted the librarian’s role by providingplanned opportunities for the students to learn.For several years we have sat down before eachsemester and figured out when and where thestudents will see and work with the librarian.Certain aspects are a given. Although she may notbe listed as a co-professor, the librarian isnevertheless always included on the course Webpage access list. She gets and sends e-mail messagesto the discussion board. She is always invited toone of the early classes and her experience andexpertise are discussed for a few minutes. She ismentioned often in class—“Susan King and I werelooking at this.” When a student asks the professora research question that is beyond the basics sheexpects law students to already know, her standardanswer is “I might ask Susan King how to do this.”

Beyond these simple norms, we have furtherdeveloped the collaboration to a more advancedlevel, incorporating both in-class and long-termprojects. We have cocreated at least two final legalwriting projects, one for first-year students and onefor upper-level students.We submitted one of theprojects, which involves home schooling issues inNew York, to the Legal Writing Institute’s BiennialIdea Bank. When choosing other major writingassignments, the legal writing professor specificallychooses those requiring students to conductspecialized forms of research, both legal andnonlegal in nature. The students understand thatpart of the grade depends on their ability todemonstrate strong research innovations.Moreover, the students are also cognizant that the

librarian worked on these writing assignments. Infact, before the legal writing professor distributesassignments, we each conduct backgroundresearch, to guarantee that two lawyers have lookedat it. Playing to our focus areas, the legal writingprofessor concentrates on the background workfrom a writing perspective, making the assignmenta pedagogically sound writing project. Thelibrarian focuses on things like hard-to-findresources, or sometimes easy-to-find but nonlegalresources.

Thinking Outside the Box:Collaboration BeyondTraditional Legal Research

We purposefully construct problems to requirenonlegal research as well as the more traditionallegal research. The legal writing professionalbelieves in teaching students how to think aboutand possibly incorporate facts that are not part ofthe controversy itself, but are of a “real world” orBrandeis-brief practical nature. The librarian helpspresent the lesson in a context where the studentsneed the information to proceed with theirassignment and at a point in the semester whenthe students are most open to learning the researchstrategy needed to locate the needed information.The librarian prepares several in-class presentationsthat cover research strategies pertaining to the areasthe students are currently researching and writingabout in their assignments.

For example, a situation involving a question ofprobable cause to stop and question a bankcustomer may require students to research thegeneral crime and bank robbery statistics for theneighborhood. In that situation, in fact, studentsdiscovered three bank robberies that same weekwithin 10 miles of the incident at hand. Thestudents also researched uniform crime reports inorder to discuss the overall crime rates in thattown. In another situation, students researchedinformation about a particular animal, inconnection with a problem concerning thedefinition of “household pets.” Students alsoresearched the geographic range of a particularanimal to address the issue of whether the trappedanimal was an endangered species. Although theseissues are legal in nature, students cannot stop withjust researching the laws and cases regardingdepositions, but also must alert the reader about

“We purposefully

construct

problems to

require nonlegal

research as well

as the more

traditional legal

research.”



the nature of the world in order to demonstrate theneed for expediency. Again, the librarian plays akey role in this lesson. The librarian’s researchpresentation might include information about howto find political and topographical maps on theWeb. She may also include information about howto research information and statistics maintainedby federal agencies, by states and municipalities,and by advocacy groups. These presentationsalways lead to “aha” moments for the students asthey suddenly understand how it is that aresearcher might approach a problem, find asource, or locate a solution to a problem. The in-class discussion lets students brainstorm strategies,understand gaps in their previous research, andconsider paths to explore in future assignments.

We also collaborate on “backward learningexercises,” although we try to do these gently.Some simple synthesis exercises early ondemonstrated a pattern of fruits that have very lowpH levels. The librarian’s presentation revisited thatexercise by showing students how to find onlinethe list of food pH levels maintained by the U.S.Food and Drug Administration.2 At another pointin the presentation, students are shown how theycould have researched historical weather data inorder to make a very persuasive argument in abrief-writing assignment regarding the duty andbreach of duty by a bank manager to keep awalkway clear of wet leaves. The brief was set in anearby town noted for its many large trees in thedowntown shopping district. The fictitiousplaintiff fell at a real bank on a particular day in apast November. The weather records for the weekbefore that day demonstrate wet and windyconditions all week, causing a condition of slipperyleaves.3 Further, the town’s Web site talks about the“Shade Tree Commission,” which meets monthly,indicating that townspeople are well aware of thehazards associated with autumn leaves.4

The facts of the problem are clear that the bankmanager has lived in the town for decades. Duringthe course of the librarian’s presentation, thestudents realize that the case is actually a “slamdunk” for the plaintiff in light of this research. Wetake great pains, however, to reassure the studentsthat the professor did not expect the students toinclude this information at the time they wrote thefirst brief, but instead to see how much morepersuasive their future briefs can be with theinclusion of specialized research. We are laying thefoundation for better lawyering in the future.

We Think It Works

Our deliberate collaboration creates anotherintended benefit. By making our collaborationopen and transparent we invite students to be partof the collaborative process as well. We specificallytell the students that we discuss writing andresearch strategies with each other. We demonstratethrough the class discussions, the Web board, andthe teaching assistant sessions that the librarian isan active consultant to the course. Thus, we striveto take the mystery out of the research process, andwe invite students to engage us in their ownresearch questions and successes. The studentslearn that collaboration is not a sign of weakness ordishonesty, but a model of sound strategy. As aresult, the students are better, more creativeresearchers and their writing reflects their increasedcomfort with the process of research and persuasivewriting. Each semester’s final assignment netsresearch gems from the students that help turntheir briefs into delightful documents. Eachsemester, as a result of the collaboration, we findthat students are far more likely to ask us forassistance in doing sophisticated research thanstudents who have not benefitted from the type ofcollaboration described here. In turn, this allows usto engage the students at greater depths, whichleads them to further explore and ultimately writebetter documents.

© 2003 Susan King and Ruth Anne Robbins

“The students

learn that

collaboration is

not a sign of

weakness or

dishonesty,

but a model

of sound

strategy.”

2 <http://vm.cfsan.fda.gov/~comm/lacf-phs.html>.3 <http://www4.ncdc.noaa.gov/cgi-win/wwcgi.dll?wwEvent~

Storms>. The National Climactic Data Center’s Storm Eventsdatabase allows searches by state, county, and time period for allmanner of storm events (e.g., flood, dust storm, hail). The NationalClimactic Data Center is part of the National Oceanic andAtmospheric Administration.

4 <http://www.haddonfieldnj.org/borough_publicworks.shtml#shadetreecommission>. Last visited Nov. 25, 2002.



WHAT TO DO WHEN ASTUDENT SAYS “MY BOSSWON’T LET ME WRITELIKE THAT”?BY WAYNE SCHIESS

Wayne Schiess is a Senior Lecturer at the University ofTexas School of Law in Austin.

The Question

I’ve taught a course called Writing for Litigationfor five years. It covers the most basic documentsused in litigation practice: letters, motions, andtrial briefs. Students learn what those documentslook like and how they are used, and they also getdetailed writing advice. I spend a fair amount oftime on words, sentences, and paragraphs, not tomention document design and format.

I also preach clarity, brevity, and simplicity inthe course. In fact, I tell students that when theysee something in a form or a model document thatthey think is odd, archaic, or unnecessarilylegalistic, they should question it: look it up, dosome research, ask around. If they conclude that itdoesn’t have to be that way, I tell them, thenchange it. Students seem to appreciate this advice,and many take it to heart.

Still, every time I teach the course, I get at leastone student who says something like this: “I likeyour advice, professor, but at the law office whereI’m working this summer, my supervisor doesn’twant me to write like that. Either I’m told torewrite it the old way or my supervisor just changesit back. What should I do?”

For any legal writing instructor who emphasizesa modern approach to writing style, it’s probably acommon question. I get similar questions fromnew attorneys, too. For example, here’s a similarconcern expressed by a former student, who sentme this question in an e-mail message:

“I work for a very small firm in southernCalifornia. The partner I work for is frequentlyoverbearing and even more frequently wrong.Virtually every motion, memorandum, brief, orother document I draft comes back with incorrectand antiquated ‘corrections.’ After working here for

a little more than six months, I decided to draftdocuments in the style of the partner I work for,even though I knew much of what I was writingwas grammatically incorrect or stylisticallyantiquated. Now that I have taken some writingcourses, I have come back with a new desire towrite better. Unfortunately, the partner I work foris upset with my new-fangled writing. I haveshown him modern books, but he is still set in hisways. Aside from quitting, do you have anyrecommendations?”

As another example, a participant in one of myseminars sent me this question: “Why are so manyattorneys wedded to the old ways of writingmotions? How can I make them (supervisingattorneys, for example) not insist on using‘COMES NOW’ and ‘this its motion’?”

And I’m not the only one getting questions likethis. In Plain English for Lawyers, Richard Wydicksays that “[t]oo many law students report backfrom their first jobs that the clear, simple style theywere urged to use in school is not acceptable to theolder lawyers for whom they work.”1

So what do you say to these students and newattorneys?

A Possible Answer

At first, I took the concerns lightly andsuggested to my students that they ought to followthe advice of the writing expert: me. In my job—safely insulated from the realities of law practice—Idon’t have to answer to a boss for my writingtechniques the way a junior attorney does. So itwas all too easy for me to say “Do it the way I toldyou, of course.”

But that answer didn’t seem to satisfy them, andI noticed. I began to see that their concerns werenot merely about words and sentences and writingstyle, but about keeping their jobs and pleasingtheir bosses. Their questions were really aboutsurvival.

So I began to think that the right advice was toadopt the writing style that pleased the boss. Infact, at least one writing teacher has recommendedthat new lawyers conform to their boss’s outdatedexpectations for legal writing. In his humorousessay, Pursuant to Partners’ Directive, Lawyer Learns

“I began to

see that their

concerns were

not merely

about words

and sentences

and writing

style, but

about keeping

their jobs and

pleasing their

bosses.”

1 Richard C. Wydick, Plain English for Lawyers 4 (4th ed.,Carolina Academic Press 1998).



to Obfuscate, Ken Bresler says that he approachedhis old legal writing teacher with a “my boss wantsit the old way” dilemma. His teacher responded, “Iteach legal writing. I don’t run an outplacementservice. Write how they want you to write.”2

A Better Answer

But I’m now persuaded that neither of theextremes is helpful. I can’t in good consciencerecommend that new lawyers blindly followarchaic models that reflect poor writing style.Neither can I recommend that new lawyers risktheir jobs by insisting on a modern style thatantagonizes the boss. So I’ve developed a stock,three-part answer that takes a middle ground. Thisis what I tell my students.

1. Don’t sacrifice your job or your workrelationship over a point of writing.

The plain-English movement and the moderntrends in legal writing are aimed at making legalwriting clearer, easier to read, and precise. Thoseare important goals. But even though as a legalwriting teacher it pains me to say this, they are notimportant enough to risk a job over. And they aren’timportant enough to justify antagonizing the boss.That relationship is more important thandocument format or word choice. So I tell studentsand new attorneys not to take a stand if they thinkit will put their job or work relationship at risk.

2. When you have control over the document,write it the way you want.

I always tell students in my advanced classes thefollowing story: When I practiced in a large lawfirm’s bankruptcy department, I was usually at themercy of the attorney I worked for. The documentswe filed—even if written by me—looked the waymy boss wanted them to look and used hislanguage.

But once my boss gave me a small bankruptcycase and told me to handle it on my own. I triednew formats for the pleadings, new language forthe introductions, and a more relaxed tone in thetext. (By the way, nothing imploded.) I used thatcase to experiment with newer, plainer legal

writing. It was great, and I didn’t upset my boss atall.

Sometimes new attorneys will be asked tohandle a case or matter on their own. So I tell mystudents that when they’re in charge, they shouldwrite it the way they want: they’ll learn, and theywon’t risk offending the boss.

3. Take a stand—occasionally—but have backup.I still want to see legal writing improve in the

practicing bar, and I still want to teach studentsabout clarity, simplicity, and plain language. So Itell students that they can take a stand for modernlegal writing style, but only when it won’t offendthe boss.

If they have a strong and positive relationshipwith the boss, then new attorneys can sometimespersuade bosses that the modern way is better.Sometimes the boss will listen. But I always pointout that the boss is not likely to listen if the juniorattorney is the only source. A novice lawyer’sopinions, thoughts, and feelings about legal writingaren’t convincing enough.

In short, I tell my students, don’t take a standwithout backup.

New attorneys should never say that the waythey write is superior because it looks better orsounds better or feels better. They need to point toa source, cite some authority, and tell the boss whatthe experts think. That way, when they decide totake a stand, their own credibility is not the onlything supporting them. Recognized experts onlegal writing support their point of view, too.

For example, if new attorneys need backup on apoint of grammar, punctuation, usage, or style,they can rely on one of the following excellent legalstyle manuals. Please note that I am distinguishinghere between legal style guides, of which there aremany, and legal style manuals, of which there areonly a few. These are comprehensive references onpoints of grammar, punctuation, usage, and stylein legal writing.

• Bryan A. Garner, The Redbook: A Manual onLegal Style (West Group 2002)

• Anne Enquist & Laurel Currie Oates, JustWriting: Grammar, Punctuation, and Style forthe Legal Writer (Aspen Law & Business 2001)

• Mary Barnard Ray & Jill J. Ramsfield, LegalWriting: Getting It Right and Getting ItWritten (3d ed., West Group 2000)

“They need

to point to

a source,

cite some

authority,

and tell the

boss what

the experts

think.”

2 Ken Bresler, Pursuant to Partners’ Directive, Lawyer Learns toObfuscate, 3 Perspectives: Teaching Legal Res. & Writing 18 (1994),originally published in Chi. Daily L. Bull. (Aug. 16, 1990), at 2.



If they’re in litigation practice, new attorneysmight rely on the following sources. Of course,there are others, but these books are particularlyfocused in writing litigation documents in acontemporary style.

• Irwin Alterman, Plain and Accurate Style inCourt Papers (ALI-ABA 1987)

• Bryan A. Garner, The Winning Brief: 100 Tipsfor Persuasive Briefing in Trial and AppellateCourts (Oxford U. Press 1999)

• Steven D. Stark, Writing to Win: The LegalWriter: The Complete Guide to WritingStrategies That Will Make Your Case—AndWin It (Main Street Books 1999)

Plus, there are many other good sources; this isonly a short sampling of my favorites. If you don’tcare for these sources, there’s nothing wrong withdoing a little research to find support for writing ina contemporary style.

The Result

This three-part advice to students has gone overwell. I occasionally get phone calls and e-mailmessages asking for a good source. That usuallymeans someone is looking for backup. I sometimesget a report that someone’s boss has come around.It’s rare, but it happens.

And I’m happy to say that no former studentshave called to tell me they got fired because of their“modern” writing.

© 2003 Wayne Schiess



YOU ARE IN THE BUSINESSOF SELLING ANALOGIESAND DISTINCTIONSBY SARAH E. RICKS

Sarah E. Ricks is a Legal Writing Instructor at the RutgersSchool of Law–Camden in Camden, N.J.

This fall, I created an exercise to directlyaddress the trouble my students have had ingrasping how best to analogize and distinguish thekey facts from decided cases, a problem both inobjective writing in the fall and in persuasivewriting in the spring.

The students readily recognize the persuasivevalue of a legal analysis that incorporates explicitanalogies to the facts of decided cases, even early inthe fall semester. Most students also are able tomake verbal comparisons and contrasts betweenthe facts of the client’s case and the facts of adecided case.

But while my students grasped the importanceof drawing explicit analogies to and distinctionsfrom decided cases, they had trouble expressingthem in writing. Many thought that by simplyjuxtaposing an explanation of the law alongsidetheir clients’ facts, they were communicatingexplicit analogies and distinctions. Othersunderstood that, to draw an explicit analogy to aparticular case, the writer should mention that caseby name, but then failed to do more than that,leaving the reader scratching her head as to whatfact in the decided case was being compared towhat fact in the client’s case. Despite doing thehard work of mentally analogizing anddistinguishing decided cases, students were failingto plainly communicate those comparisons andcontrasts to the reader.

To help the students better communicate theanalogies and distinctions they needed the readerto understand, this fall I created an in-classhandout and exercise, breaking down the processinto incremental steps. The exercise is equallyadaptable to persuasive writing.

The Business of SellingAnalogies

I told the students that, while no two cases werealike, two situations may be analogous and thattheir job was to persuade the supervising attorneythat a court was likely to view the client’s facts asmore similar to certain decided cases and lesssimilar to other decided cases. To do so wouldrequire the students to draw analogies, such as “theapple in Case A is analogous to the tomato in CaseB because both are red.” I used a market metaphor:“You are in the business of selling analogies anddistinctions. Your job is to get the busy partner,and ultimately the court, to buy your analogy to acase and to buy your distinction of a case.”

In class, I walked them through the best way tosell the supervising attorney an analogy to adecided case, and ultimately, to sell the court thesame analogy. First, in the explanation of the law,assure the supervising attorney that the decidedcase the student will later analogize to is bindinglegal authority. Otherwise, the court will not beconstrained to follow it. (While analogies tononbinding law will sometimes be necessary, forthis exercise I wanted to focus students on the bestsource of analogies and the surest way to get thesupervising attorney to buy the analogy.)

Second, again in the explanation of the law,assure the supervising attorney that the fact thestudent wants to analogize to was a key fact in thatdecided case. If the fact was not outcomedeterminative in the decided case, then neither willthe presence or absence of that fact in the client’scase affect the outcome. Third, when applying thelaw to the client’s facts, give the supervisingattorney sufficient information to permit him orher to independently evaluate whether the factfrom the decided case really is similar to the fact inthe client’s case. A law-trained mind will notblindly adopt the analogy without independentlyweighing it.

Keeping in mind that analogies must beexplicit, I then asked the students to look at threeattempted analogies to see if they could easily tellwhat analogy the attorney was trying to sell to thebusy partner (and ultimately, the court). Because Iwanted the students to focus on a single new skill, Ichose a legal analysis the students already knewvery well:

“A law-trained

mind will not

blindly adopt

the analogy

without

independently

weighing it.”



• Like the unattached garage in Picaroni, whichwas separated from the house by a walkway,here the trailer was separate from Ms. Peluso’smain house.

• Like Picaroni, here the trailer was separatefrom Ms. Peluso’s main house.

• Here, the trailer was separate from Ms.Peluso’s main house.

The students easily grasped that the firstanalogy was superior because it explicitly equatedthe trailer to a specific fact in the decided case.That helped build the students’ confidence. Theyeasily understood that the second equated thetrailer to some unspecified fact in Picaroni and thatthe third example drew no analogy at all but left itup to the reader to figure out how the law appliedto the client’s facts. We called the last example the“Happy Hour” analogy. That is, the messagecommunicated to the busy partner was “Hey,Happy Hour’s about to start, so this juniorattorney can’t be bothered to spend any more timeon this memo.”

I then shifted the students’ attention to whatinformation was necessary in the explanation of thelaw to set the stage for explicit analogies in theapplication of the law to the client’s facts. Againusing the market metaphor, I told them the busysupervising attorney is in the market for analogiesbetween the client’s facts and the key facts inbinding legal authority. Because the court is theultimate decision maker, and the court isconstrained to act consistently with binding law,the supervising attorney is most interested indemonstrations of how the client’s case is similar tocritical facts from authority that will bind thecourt.

I had the students examine three explanationsof a legal principle they knew well, asking eachtime whether the explanation made it easy to graspwhether the case discussed was 1) binding legalauthority and 2) whether the facts mentioned werethe key facts that determined the court’s ruling.The first example did both. The second exampleprovided the holding shorn of key facts, so thereader could not tell why the court reached itsruling. The third example provided manyirrelevant facts from the case but again left out theoutcome-determinative facts, leaving the reader inthe dark as to the reasons for the court’s ruling.

Again, the students’ confidence was increased bytheir easy grasp of the superior explanation of thelaw.

The Business of SellingDistinctions

We then turned our attention to “How to getthe busy partner to buy your distinction of abinding legal authority.” I explained the focus wason binding law because the most efficient way todistinguish nonbinding law is to point out that itis not binding. Because the steps were very similarto those necessary for persuasive analogies, thestudents’ confidence grew.

First, in the explanation of the law, assure thebusy supervising attorney that the fact from thedecided binding authority that the student wantsto distinguish was a key fact in the decided case. Aswith analogies, if the fact was not critical to theoutcome in the decided case, then neither will thepresence or absence of that fact in the client’s caseaffect the outcome. Second, when applying the lawto the client’s facts, give the supervising attorneyenough information to independently evaluatewhether the fact from the decided case really isdifferent from the fact in the client’s case.

I told them the busy supervising attorney is inthe market for distinctions between the client’sfacts and the key facts in binding legal authority.As with the analogy exercise, I had the studentsexamine three explanations of a legal principle theyknew well, asking each time whether theexplanation made it easy to grasp whether the casediscussed was: 1) binding legal authority and 2)whether the facts mentioned were the key facts thatdetermined the court’s ruling.

The first example did both. The secondexample provided the holding but no key facts, sothe reader could not tell why the court reached thatholding. The third example provided irrelevantfacts from the case but left out the key facts, againfailing to explain the reasons for the court’s ruling.While the focus was on laying the groundwork forthe later distinction of the cases, these examplesalso demonstrated the importance of thesissentences in explaining the law.

Keeping in mind that distinctions, likeanalogies, must be explicit, I then asked thestudents to look at three attempted distinctions of

“[T]he busy

supervising

attorney is in

the market for

distinctions

between the

client’s facts and

the key facts in

binding legal

authority.”



the case just explained and asked if they couldeasily tell what distinction the attorney was tryingto sell to the busy partner:

• Unlike the attached garage and enclosed patioin Cook, which qualified as integral parts ofthe main house because they were akin toadditional rooms, here Ms. Murray’s trailerdoes not share any door with the mainresidence, even when the trailer is parked inthe driveway.

• Unlike Cook, here Ms. Murray’s trailer doesnot share any door with the main residence,even when the trailer is parked in thedriveway.

• Here, Ms. Murray’s [trailer] does not shareany door with the main residence, even whenthe trailer is parked in the driveway.

The students easily identified the firstdistinction as most persuasive because it explicitlycontrasted the trailer with specific facts from thedecided case. They readily understood that thesecond contrasted the trailer to some unspecifiedfact in Cook that the writer did not bother toidentify. They had no trouble seeing that the thirdexample drew no distinction at all but left the hardwork of applying the law to the reader. By then,some of the students were laughing at the haplessauthor of the third example.

Applying the New Skills ofSelling Analogies andDistinctions

Then came the moment of truth: It is easier torecognize good legal writing than to create it. I hadthe students take out their copies of their owncompleted memos, which they had handed in buthad not yet received back.

I asked them to look only at the section of thememo applying the most complex prong of thelegal test and to highlight an important analogythat they had drawn between the facts of a decidedcase and the facts of the client’s case. They thenasked themselves two questions: Does the analogygive the busy partner enough information toindependently evaluate whether the fact from thedecided case really is similar to the fact in theclient’s case? If there are no case names in theapplication of the law, will the busy partner easilygrasp what legal principles are being applied and

what their sources are? I heard groans, nervouslaughter, and sighs of recognition in the room.

Keeping in mind the analogy they hadhighlighted, I then had them highlight theexplanation of the legal significance of the fact theyhad analogized to in the application of the law.They then asked themselves three questions: Doesthe explanation of the law tell the busy partner thatthe decided case is binding legal authority? Doesthe explanation of the law clearly identify the factyou later analogize to as a key fact in the decidedcase? Does the explanation of the case include anyunimportant facts that do not help the busypartner to understand why the court ruled the wayit did? Again, sighs of recognition.

After the first time I taught this exercise, onestudent told me in an e-mail message that, untilthat class, he had not understood how best to drawcomparisons between decided cases and his owncase: “I think I was doing exactly what youmentioned in class—providing Piece A and PieceB, but not putting them together to createcomprehensive Completed Puzzle C.” Anotherstudent came to my office to tell me she nowrealized the weaknesses in the memo she had justturned in. I think the exercise helped many otherstudents reach the same point, which preparedthem for the critical feedback on their memos thatthey were about to receive from me.

Finally, because the concept of explicitcomparisons and contrasts is harder for students toimplement in their own writing than it is for themto recognize in the writing of others, I repeated theself-editing portion of the exercise later in thesemester, just before the students handed in theirsecond memos.

Conclusion

I think this exercise helps students learn a coreskill necessary for all legal analysis: extracting thegoverning legal principle from a case, explainingwhat key facts were critical to the outcome of thecase, and then explaining how that governing legalprinciple applies to a new set of facts by explicitlycomparing and contrasting their clients’ facts withthe key facts of decided cases. Students seemed tounderstand that this is the same skill necessary torespond to the hypotheticals tossed at them in theirdoctrinal courses, and to appreciate having theprocess broken down into incremental, easily

“Then came

the moment

of truth: It is

easier to

recognize

good legal

writing than

to create it.”



digested steps. Finally, students appreciated theself-editing process during class, which gave themboth an objective tool for assessing whether anapplication of the law was as strong as it could beand a tool to help strengthen the analysis.1

© 2003 Sarah E. Ricks

1 I have both a student handout version and a teacher’sversion of the above exercises, both of which I am happy to shareif you contact me at [email protected].



DETERMINING THE SCOPEOF A COURT’S HOLDINGBY M.H. SAM JACOBSON

M.H. Sam Jacobson is an Instructor of Law at theWillamette University College of Law in Salem, Ore.

New assignments bring the unexpected—sometimes bad (e.g., a seemingly insignificantbackground fact that annoyingly skews the analysisin an unanticipated way), sometimes good (e.g., adelightful synthesis that weaves the cases into atidy framework). This year the lead case in myclosed-universe problem provided a wonderfulopportunity to discuss how broadly or narrowly tointerpret the case’s holding.

The assignment concerned whether a courtwould sanction a party for attorney fees as a resultof discovery violations. Oregon Rule of CivilProcedure 46 B(2)(c), like the federal rule,required that the court’s sanction be “just.” InPamplin v. Victoria, 319 Or. 429, 877 P.2d 1196(1994), the Oregon Supreme Court established atest for determining when a sanction is just.However, the court established this test somewhatindirectly when it remanded the case to the trialcourt with instructions: it directed that the trialcourt make findings of fact and explain its reasonsfor the sanction, and that the trial court findwillfulness, bad faith, or other similar fault. Thefirst portion of this directive establishes a recordthat the appellate court can review on appeal andthe second portion establishes the test fordetermining when a sanction is just.

For my first-semester students, however, theholding was not so clear. First, since the studentswere evaluating a problem for a client, not anappellate court, they had to evaluate Pamplin froma different point of view: the students needed todetermine what guidance the case gave to a partyconsidering an appeal of a trial court decision,rather than what guidance it gave to a trial courtfor making a decision. Second, the students neededto evaluate whether the test in Pamplin was notrelevant or was materially distinguishable becausePamplin involved a sanction of dismissal, ratherthan a sanction of attorney fees. Finally, thestudents needed to evaluate whether the case couldprovide any factual guidance concerning what

would be a just sanction when the appellate courtremanded the case to the trial court for furtherproceedings and when the appellate court woulddefer to the lower court’s decision unless the lowercourt abused its discretion.

Using the holding of Pamplin, a case withwhich the students were by now intimatelyfamiliar, I could more effectively illustrate for thestudents the factors that would determine howbroadly or narrowly they could interpret the scopeof Pamplin’s holding and what inferences theyreasonably could draw from the case. Those factorsinclude: 1) the specific nature of the court’s ruling,2) the facts of the case, 3) the court’s reasoning,and 4) the degree of deference that the appellatecourt must give to the decision of the trial court.To illustrate:

Court’s Ruling

First, how broadly or narrowly a person mayinterpret a court’s decision depends on the specificnature of the court’s ruling. In Pamplin, theOregon Supreme Court did not rule on whetherthe facts of the case were sufficient to support asanction of dismissal. Instead, the court stated thatit was unable to rule because the trial court neededto do some additional work before an appellatecourt could consider the case. Therefore, the issueand holding would be:

Issue: Can a trial court dismiss a case withprejudice as a sanction for discovery violations ifthe sanction must be just when the trial courtmade no oral or written findings of fact; whenplaintiffs did not respond to numerous requestsfor medical and tax documents, nor a courtorder to compel; and when the defendant hasreceived no information concerning plaintiffs’damages and the trial date is in nine weeks?

Held: The trial court could not dismiss this casewith prejudice as a sanction for discoveryviolations unless it determined first that thesanction is just, and that determination isreflected in oral or written findings of fact and astatement of its analysis that establishes thatplaintiffs’ failures to respond to the multiplerequests for production of documents and thecourt order to produce constituted willfulness,bad faith, or other fault of similar degree.

“This year the

lead case in

my closed-

universe

problem

provided a

wonderful

opportunity

to discuss

how broadly

or narrowly

to interpret

the case’s

holding.”



Because the supreme court only determinedwhat test would apply for determining when asanction of dismissal would be just, one could drawno conclusion about whether the facts of this caseare legally sufficient, or insufficient, to support afinding that dismissing the case would be just. Thesupreme court reversed this case to allow the trialcourt to enter an order that complies with thesupreme court’s test, not because the facts were not sufficient to justify dismissing the case.Consequently, the court’s holding would be limitedto the test it declared.

Case Facts

Second, how broadly or narrowly a person mayinterpret a court’s decision depends on the facts ofthe case and whether they are characterizedgenerally, supporting a broader interpretation, orwhether they are characterized more specifically,supporting a narrower interpretation. In Pamplin,if the trial court had made a proper record for theappeal, the supreme court could have consideredthe underlying merits of the sanction. Then theissue would be:

Issue: Can a trial court dismiss a case withprejudice as a sanction for discovery violations,if the sanction must be just, which (a) requires atrial court to make findings of fact and explainits reasoning when the trial court made findingsof fact and explained its reasoning in writing;(b) requires a finding of willfulness, bad faith,or other fault when plaintiffs did not respond tonumerous requests for medical and taxdocuments, nor a court order to compel; and(c) does not require, but a court may consider,prejudice when the defendent has received noresponses to multiple requests, over a period ofseven months, for medical and tax documents,and the trial date is in nine weeks?

The test that the court declared earlier nowbecomes the framework for the issue; each part ofthe test is an aspect (or element) of the issue (just).Included with each aspect are the key facts thatconcern that aspect. In this circumstance, hownarrowly or broadly a person interprets the court’sholding on this issue depends on how the personcharacterizes the key facts.

For example, assume that the supreme courthad ruled that the sanction of dismissal was just:

Held: The trial court’s sanction of dismissal fordiscovery violations was just because the trialcourt made written findings and explained itsreasoning, and because the plaintiffs actedwillfully when they failed to respond tonumerous requests and a court order toproduce medical and tax documents, eventhough the defendant is not prejudiced by thefailure to respond when the trial court canreschedule the trial date.

If a person were evaluating another case on thesame issue, that person would compare the facts ofhis or her legal problem with the facts of this caseto determine how the court likely will rule.Assume that in the legal problem, the trial courtmade oral findings and explanations before issuingits sanction. As part of the analysis, a person mustdetermine if the oral findings and explanations ofthe trial court are sufficient to comply with thefirst requirement for dismissal. When the facts ofthe supreme court case are interpreted narrowly,i.e., that the findings must be in writing, then theoral findings might not be sufficient to facilitateappellate review. However, when the facts of thesupreme court case are interpreted broadly, i.e.,that the trial court must make findings, regardlessof the form, then either written or oral findingsmight satisfy this requirement and be sufficient tofacilitate appellate review.

Court’s Reasoning

Third, how broadly or narrowly a person mayinterpret a court’s decision depends on theappellate court’s reasoning in its decision and whatreasonable inferences the person can draw fromthat reasoning. Earlier, I stated that a person coulddraw no conclusion about whether the facts ofPamplin were legally sufficient, or insufficient, tosupport a finding that dismissing the case would bejust, because the supreme court only determinedwhat test would apply for determining when asanction of dismissal would be just. The situationmight be different if the supreme court hadcommented on the sufficiency of the evidence inits opinion. Then, a person might be able to drawsome inferences from the case that go beyond itsactual holding.

For example, assume that the supreme court’sopinion included strongly worded dicta that

“The test that the

court declared

earlier now

becomes the

framework for

the issue.”



directed the trial court on how it should rule. If thestrong wording advised the trial court that the factswould support a finding of willfulness, bad faith,or other similar fault, then a person reasonablycould infer that another case with similar factsprobably would support a finding of fault.Likewise, if the strong wording advised the trialcourt that the facts would not support a finding offault, then a person reasonably could infer thatanother case with similar facts probably would notsupport a finding of fault.

Degree of Deference

Finally, how broadly or narrowly a person mayinterpret a court’s decision depends on the degreeof deference that the appellate court must give tothe lower court’s decision. The degree of deferencethat the appellate court must give to the lowercourt’s decision is established by the “standard ofreview” that applies to the type of question onappeal. While the beginning of fall semester isquite early in the learning process to discussstandards of review, some information aboutstandards of review could be helpful now, becauseit may help explain why two cases with similarfacts but different outcomes might both beaffirmed on appeal.

Imagine that the degree of deference that anappellate court must give to the lower court’sdecision is a continuum ranging from no deferenceon one end to almost complete deference on theother end. How much deference an appellate courtmust give depends on the type of question that ison appeal. The least amount of deference is givenwhen the question before the appellate courtconcerns what law applies. The greatest amount ofdeference is given when the question before theappellate court concerns the findings of fact by ajury. In between these two extremes are additionalstandards of review, including the one that thecourt applied in this case, abuse of discretion.When the standard of review is significant, aperson might include it in the issue; for example:

Issue: Did the trial court abuse its discretion bydismissing a case with prejudice as a sanctionfor discovery violations, if the sanction must bejust, which (a) requires … ?

Generally, whenever the law gives the trial courtdiscretion on a matter, a review of the trial court’s

decision by an appellate court will be limited bythe abuse of discretion standard of review. Underthis standard of review, the appellate court wouldaffirm the trial court’s decision if the recordincluded some facts to support it. This usually willmean that the appellate court will give substantialdeference to the lower court’s decision since therecord almost always will include some facts thatcould support the decision. As a result of thisdeference, the appellate court conceivably couldaffirm the results in two cases with similar facts butopposite results since the record most likely wouldinclude facts that would support deciding eitherway.

Conclusion

In deciding how broadly or narrowly tointerpret a court’s opinion, the students’ firstconcern should be evaluating the nature of thecourt’s holding; their second concern should beevaluating the facts of the case; and their thirdconcern should be evaluating the court’s reasoning.Next semester, after the students learn more aboutstandards of review, they can add it to theirrepertoire of analytical tools for determining thescope of a case’s holding.

© 2003 M.H. Sam Jacobson

“How much

deference an

appellate court

must give

depends on

the type of

question that

is on appeal.”



A REVISED CONCEPTCHART: HELPING STUDENTSMOVE AWAY FROM ACASE-BY-CASE ANALYSISBY DEBORAH SHORE

Deborah Shore is a Legal Writing Instructor at RutgersSchool of Law–Camden in Camden, N.J.

One of the most challenging tasks I have facedin teaching first-year legal research and writing ismoving the students away from a case-by-caseanalysis of the law in a memo toward a thesis orfactor-based analysis. However, I have found thatthe use of a typical case chart has often hinderedmy ability to succeed in this endeavor. By requiringthe students to list the relevant cases in the firstcolumn and then asking them to fill in the factsand relevant factors considered by each court in thesubsequent columns, the traditional case chart stillfocuses the students’ attention first on theindividual cases, rather than on legal conceptsflowing from those cases.

Example 1: The Traditional Case Chart

The typical student, after completing atraditional case chart such as the one shown inExample 1, will often immediately begin adiscussion of the law in a memo by firstmentioning Case A, then discussing the facts ofCase A, the relevant factors addressed by the courtin Case A, and then the outcome of Case A. Thiswill then likely be repeated for Case B, and soforth, with little, if any, attempt to synthesize thosecases. In my teaching experience, so long as thecase chart’s primary focus in the first column wasupon the individual cases, it was difficult for novicelegal writers to move away from a case-by-casediscussion of the law in their memos.

In an effort to remedy this method of case-by-case discussion in a memo, I quickly designed inclass a revised concept chart that helps to focus the

students’ attention not so much on the individualcases, but on the various legal concepts flowingfrom the cases.

Example 2: The Revised Concept Chart

I first used the revised concept chart shown inExample 2 in a semester where my memoassignment required the students to grapple withthe issue of whether, and to what extent, ashopkeeper may lawfully detain a suspectedshoplifter.1 After the students had found andreviewed the relevant case law, I asked them to tellme what factors the courts generally consider whenresolving this issue. The students properlyresponded that the relevant factors are whether theshopkeeper had probable cause to believe a

“After the

students had

found and

reviewed the

relevant case

law, I asked

them to tell me

what factors the

courts generally

consider when

resolving this

issue.”CASE FACTS FIRST SECOND OUTCOMENAME FACTOR FACTOR

Case A

Case B

Case C

RELEVANT FACTOR- OUTCOME CASE MISC.FACTOR RELATED OF NAME INFORMATION

FACTS FACTOR

Probable Security Satisfied Case Acause guard

witnessestheft of item

(same) Third party Satisfied Case Binformssecurityguard ofapparenttheft

(same) Security Not Case Cguard satisfiedwitnessesshopperrunning outof store

Reasonableness Suspected Not Case Aof the detention shoplifter satisfied

detained forfour hours

(same) Suspected Satisfied Case Bshoplifterdetained for30 minutesuntil policearrived

(same) Suspected Not Case Dshoplifter satisfiedhandcuffedin front ofothercustomers

1 The students’ assignment required them to research theshopkeepers’ privilege as a defense to a false imprisonment claimunder New Jersey law. While the information included in thechart is generally based on actual New Jersey cases, I havesimplified the facts and omitted case names for demonstrationpurposes.



shoplifting had occurred, and whether thedetention itself was reasonable.

I then told the students to review their pile ofcases quickly and write on top of each case whichfactor or factors the court considered in renderingits decision and whether each factor consideredwas satisfied in that case. I then asked the studentsto put in a pile all of the cases that addressed thefirst factor, probable cause.

We then turned to the chart where I enteredprobable cause in the far left column of the chartin an effort to focus the students’ attention first onthat factor. Once I entered the probable causefactor, I completed the next two columns of thechart by asking the students to tell me the factor-related facts from each case, as well as whether theprobable cause factor had been satisfied in eachcase. Only after I gathered this information did Iask the students for the individual case names fromwhich this information came. I then entered intothe final column any other relevant informationthe students wished to include about the factor orthe case. This revised chart thus has as manyprobable cause rows as there are relevant casesdiscussing probable cause.

Once we had gone through each of the casesthat addressed the probable cause issue, I movedon to the second factor, the reasonableness of thedetention. I began by asking the students to put ina pile all of the cases that addressed thereasonableness of the detention. Many of the casesaddressed both the probable cause and thereasonableness factors. We then completed thechart in the same manner as we did for the firstfactor.

When viewing the completed chart from left toright, the students were immediately able to seehow a discussion of the law should be organized.They were able to compare the fact patterns of thecases and develop theses upon which to organizetheir discussions. For example, when addressingthe probable cause factor, the students looked atthe chart and were able to see that in situationswhere a security guard witnesses the theft or isinformed of the theft by a third party, probablecause will be present. Rather than consider eachcase individually, the grouping of similar casesseemed to flow naturally from the chart.

While this revised concept chart will likely belengthier than the traditional case chart and will

require a bit more advance preparation, I believethat the results are well worth the extra effort. Aftercompleting the chart, the students understood howmuch more sense it made and how relatively easy itis to organize by concept rather than by case.

© 2003 Deborah Shore

“When viewing

the completed

chart from left

to right, the

students were

immediately

able to see

how a

discussion

of the law

should be

organized.”



TOP 10 WAYS TO USEHUMOR IN TEACHINGLEGAL WRITING1

BY SHEILA SIMON

Sheila Simon is an Assistant Clinical Professor of Law atthe Southern Illinois University School of Law inCarbondale.

Brutal Choices in Curricular Design ... is aregular feature of Perspectives, designed to explorethe difficult curricular decisions that teachers of legalresearch and writing courses are often forced to makein light of the realities of limited budgets, time,personnel, and other resources. Readers are invited tocomment on the opinions expressed in this columnand to suggest other “brutal choices” that should beconsidered in future issues. Please submit material toHelene Shapo, Northwestern University School ofLaw, 357 East Chicago Avenue, Chicago, IL60611, phone: (312) 503-8454, or to MaryLawrence, University of Oregon School of Law,1515 Agate Street, Eugene, OR 97403, phone:(541) 346-3848.

Hey—think on a gut level with me for just aminute. Do you do a better job as a teacher whenyou’re having fun? Of course! And do yourstudents learn better if they’re having fun? Sure! I’llget to the pointy-headed stuff later, but for nowkeep going with your instincts and check out mytop 10 ways of using humor in the legal writingclassroom:

10. Question of the Day

Instead of taking attendance I ask the students aquestion at the start of each class. It takes sometime, but it helps me to get to know each student.When I can, I match the question to the classtopic. On the first day of class I ask for the bestbook they read in the last year. It makes a perfectintroduction to our topic for the first day, readingthe law. When there’s no direct match I asksomething I’m curious about, like what job wouldthe student do if she or he couldn’t be a lawyer.

Although I started this process for my own benefit,the students enjoy it as well. They come to my classknowing they will be called upon, and that theywill know the answer. That’s a good confidencebooster for a first-year student.

9. Cast a Case

Students have to be good legal readers beforethey can be good legal writers. One of the ways Iencourage careful reading is to have students castthe movie of the case.2 Is the plaintiff a DannyDeVito or maybe a Denzel Washington? Is thedefendant a Jennifer Lopez or a Helen Mirren? Ittakes just a few minutes of class time and it paysoff. Each student now has a tool to use to make thefacts of any case more vivid.

8. Who Wants to Be aCitationaire?

What’s more exciting than learning the citationmanual? Just about anything. To make payingattention to the detail in the ALWD CitationManual a bit more interesting, we have ourstudents compete in a Who Wants to Be aMillionaire format game show. They compete fortacky prizes provided by research service vendors.Game show formats are nothing new. ProfessorsJames Duggan and Frank Houdek here atSouthern Illinois University have producedJeopardy-style games before. Currently I’m mullingover a weekly citation game—Survivor: SummerAssociate. People could be eliminated from the firmwhen they fail a citation challenge. Kind of aspelling bee grown up and on steroids.

7. Food Analogies

The comparison of the structure of legal writingand lasagna is probably obvious, but I’ll explain itanyway. Lasagna is a layered food. When we orderlasagna we expect that there will be certainingredients and that they will be layered. But whatif you ordered lasagna and got a pile of noodles onthe right, cheese on the left, and some spinach on aseparate saucer? Or, worse yet, what if all thelasagna ingredients were put into a blender! Thisanalogy helps students understand that having allthe right ingredients for a memo means pretty little

“Do you do a

better job as

a teacher

when you’re

having fun?

Of course!”

1 This paper was prepared in connection with apresentation at the Legal Writing Institute conference in May2002, in Knoxville, Tennessee.

2 For a more complete explanation of how to cast a case inclass see Sheila Simon, Teaching Active Reading, The Law Teacher 11(Spring 2001).

B R U T A L C H O I C E S I N C U R R I C U L A R D E S I G N . . .



without the structure that the legal reader isexpecting.

How to deliver this lasagna message is the nextquestion. The visual nature of the message seemedto lend itself to still pictures. Check out<www.law.siu.edu/ssimon/sheila.htm> for picturesof my extremely cooperative husband serving uplasagna in regular, disorganized, and blenderformats. Taking this idea a step further, ProfessorKenneth Chestek actually made lasagna for hisclass this fall.

Another tasty analogy comes from ProfessorSophie Sparrow. She tells students that a first draftis like a club sandwich. Revising a first draft is notas simple as adding a little mustard. It can beremaking the sandwich into a casserole.Mmmmm.

6. Real Examples of ReaderError

Do you try to keep your students from writingthings that can be interpreted more than one way?Of course. One way I demonstrate how this kindof reader error happens is with an example of meas the thoughtless reader. I read to the students ane-mail message from Professor Richard Neumannon the legal writing e-mail discussion list. I explainto the students that Professor Neumann is a topdog3 and I’m going to read every word of hismessage. The message started like this:

“ The following rap [emphasis added to showthe exact moment of reader error] helps, ifdelivered in the first class of the semester andthen repeated (as though it were tape recordedand the ‘play’ button had been pushed) everytime a student is heard saying something self-indulgent.”

So I’m ready to read on:

“No matter what you do for a living, people willpay you money only if your work adds value toa situation. To earn a professional’s salary, youhave to add professional value. ... ”

But where’s the rhyme scheme? Where’s themeter? This guy writes a fine text but he really

stinks as a rap artist ... oh ... he didn’t mean thatkind of rap. Never mind. This helps me explain thewriter’s oath: first, generate no unintended bellylaughs.

5. Real Examples of PoorEditing

Everyone has examples of poor editing frompractice. My two favorites come from my days asan assistant state’s attorney. First, I show a motionto suppress based on an officer’s failure to provide a“memoranda warning.” That kind of warningmight be appropriate for us to give at thebeginning of the semester, but it’s rarely useful to adrunk driver. Second, I describe how one defenseattorney submitted a “motion for continence.” Thestudents appreciate how much fun I had standingup in court and stating, “The people have noobjection to continence.”

4. The Legal Reader

Many students have no earthly idea of how alawyer or judge reads a memo or brief, so I givestudents an image from outer space—MysteryTheater 3000. If you’ve ever wasted time surfingchannels late at night you may have seen thesilhouetted figures that comment on old sci-fimovies as the movies are shown. The charactersmake comments like, “Love the pants,” and “I can’tbelieve those sideburns!” One flash of this imageand students have a more complete understandingof their audience. The legal reader might say,“Look at the misplaced apostrophe!”

3. Plunge into Persuasion

To help students shift from objective topersuasive writing, I start the spring semester withan exercise in which students use ordinary,everyday persuasion.4 The first student is told thatshe is a babysitter, and she must get a child to go tobed. The next student is told that she is the parentand she must get the child to bed. It turns out thateveryone understands the difference in levels ofauthority! By changing the scenarios slightly fromone student to the next, the students’ own

“Do you try to

keep your

students from

writing things

that can be

interpreted

more than

one way?

Of course.”

3 Richard K. Neumann Jr., Legal Reasoning and LegalWriting: Structure, Strategy, and Style (4th ed., Aspen Law &Business 2001).

4 For more explanation on how to use this persuasionexercise, see Sheila Simon, Take My Garbage—Please! TeachingPersuasion Through Arguments Anyone Can Make 16 The SecondDraft, Bulletin of the Legal Writing Institute 7 (December 2001).



arguments show that they come equipped with anunderstanding of concepts like levels of authority,selection of key facts, and when sometimes the bestcourse is to choose not to argue a sure loser.

2. Use Fun Movie Clips

Movie clips can help introduce new skills. I usea set of clips to introduce appellate argument. FirstI show two clips of a common image of lawyersmaking an argument—closing statements made byAtticus Finch in To Kill a Mockingbird and aclosing argument from the Saturday Night Live skit“Unfrozen Cave Man Lawyer.” Those clips getstudents hooked in and thinking of their images oflawyers at work in the courtroom. Then I givestudents a more accurate picture of appellateadvocacy. I show part of an argument from one ofthe Florida Supreme Court bouts with Bush v.Gore. The clip is short, but it has a good samplingof questions from the bench and answers from theattorney. This gives the students a visual modelfrom a case that they know was significant.

1. Sing Your Syllabus

Singing your syllabus is the key to an accuratefirst impression. Nothing says, “I’m anapproachable person” quite so well as a banjostrapped to your shoulder. Who cares if you can’tsing. This year the SIU Lawyering Skills Chorale5

sang “These Skills Were Made for You and Me” atfirst-year orientation. With apologies to WoodyGuthrie, students and faculty joined in on thechorus, which goes as follows:

These skills are your skills, these skills are myskillsFrom basic reading, to the case you try skillsFrom handy guidebooks, to good authority,These skills were made for you and me.

Show the students that you are willing to laughwith them, and at yourself when it’s appropriate.

And now, as promised, a note for the pointy-headed. Fun isn’t just for fun—it helps yourstudents learn. There is no doubt that stress is apart of law school, a big fat negative part of lawschool. Professors Lawrence Krieger and Ruth Ann

McKinney have written about the particularpressures that law schools choose to impose onpeople, and how we can begin to make some betterchoices.6 And Professor James Levy has identifiedteacher enthusiasm as a key to student learning.7

But the easiest way to measure how humor canhelp in the classroom is to use the list thatProfessor Gerry Hess has developed for creating aneffective learning environment.8 The elements of agood learning environment are respect,expectation, support, collaboration, inclusion,engagement, delight, and feedback.9 Just about allof the top 10 methods described here providedelight—a sense of enthusiasm that can becontagious. Inclusion and engagement are animportant part of casting a case, playing theCitationaire game, and doing persuasion exercises.And the question of the day is all about respect.Through one question in each class, you can learnmore than just the students’ names; you can learn alittle bit about what motivates the students. Andthe students learn that you focus on them.

Consider this top 10 list as a starter, like thatsourdough you got from a friend. Let it sit aroundfor a while, then make something of your own outof it. Use humor as it fits your personality and yoursyllabus. Go have some fun already!

© 2003 Sheila Simon

“The elements of

a good learning

environment

are respect,

expectation,

support,

collaboration,

inclusion,

engagement,

delight, and

feedback.”

5 The Lawyering Skills Chorale, composed of Sue Liemer,Adria Olmi, Melissa Shafer, Laurel Wendt, and the author, isavailable for any events where legal research and writing skills areprized and musical talent is less significant.

6 Lawrence Krieger, Institutional Denial About the Dark Sideof Law School, and Fresh Empirical Guidance for ConstructivelyBreaking the Silence, 52 J. Legal Educ. 112 (2002), and Ruth AnnMcKinney, Depression and Anxiety in Law Students: Searching forSolutions, 8 Legal Writing ___ (forthcoming).

7 James Levy, The Cobbler Wears No Shoes: A Lesson forResearch Instruction, 51 J. Legal Educ. 39 (2001).

8 Gerry Hess, Heads and Hearts: The Teaching and LearningEnvironment in Law School, 52 J. Legal Educ. 75 (2002). Gerrywrote such a good article that you should read it right now; well,maybe just after you finish reading this one.

9 Id. at 87.



SWEATING THE SMALLSTUFFBY STEPHEN V. ARMSTRONG AND TIMOTHYP. TERRELL

Stephen V. Armstrong is the Director of CareerDevelopment at Wilmer, Cutler, & Pickering, a law firmbased in Washington, D.C. He is a former Englishprofessor and journalist. Timothy P. Terrell is a Professorof Law at Emory University in Atlanta, Ga., and formerDirector of Professional Development at the law firm ofKing & Spalding in Atlanta. Together, they are theauthors of Thinking Like a Writer: A Lawyer’s Guide toEffective Writing and Editing (1992; second editionforthcoming in 2003 from the Practising Law Institute).They are regular contributors to the Writing Tips columnin Perspectives.

Over years of working with newly graduatedlawyers to improve their writing, we have spentmore time than we like to remember asking themto pay less attention to trivia such as passive voiceand more to the big organizational and rhetoricalissues they’d prefer to ignore. When associatesshow up with drafts in their hands, many of themsay they’re interested only in a few tips for writingjazzier sentences. Everything else, they have undercontrol. As a result, we often have to begincoaching sessions by disabusing them of thatblissful delusion. This requires forcing them toraise their noses higher than six inches above thepage, so they can instead look at a draft from adistance at which its organizational and rhetoricalproblems become visible.

In this effort, our credibility sometimes suffersbecause we can’t help becoming obsessive aboutsome micro-level problems, ones so “small” thatmany writers have trouble seeing them even whenwe point them out. What upsets us about theseproblems, we have finally realized, is not theproblems themselves. Truth be known, they areseldom fatal. Instead, what bothers us is theunderlying attitude they suggest: A sentence is justa loose assemblage of words and, as long as eachword ends up in roughly the right neighborhood, itdoesn’t much matter exactly where it goes. That’s asloppy and dangerous attitude, especially forlawyers. Instead, we try to tell them, writers shouldregard a sentence as a bridge: If it is to remain

standing while carrying substantial weight, eachword has to fit into one and only one place. Ofcourse, any sentence can be constructed in severalways. But, once you’ve chosen the best structure,each word should click precisely into its slot. Infact, so should each punctuation mark.

To drive this lesson home, we often seize on thefollowing “micro” problems to make the largerpoint. Each involves the links between pieces ofinformation.

A Misplaced Conjunction

This problem usually shows up when a writerlists a series of items (a, b, and c, for example), oneof which is itself a multipart series (a, b-1 and b-2,and c). The danger is significant because itsometimes arises from conceptual sloppiness, notjust stylistic clumsiness. The sentence below, froma memorandum of law in a discovery motion, iswritten as if it contains an “a, b, or c” series:

Before:Megacorp objects to the Request because it is[a] overbroad, [b] unduly burdensome, and [c]asks for material which is neither relevant to thesubject matter of this litigation nor reasonablycalculated to lead to the discovery of admissibleevidence.

It is written, in other words, as if three items followthe verb “is.” In fact, only two follow “is”; the thirdfollows another verb, “asks.” To fix the syntax,then, the sentence should be revised to read:

Revision 1:Megacorp objects to the Request because it [a]is [a-1] overbroad and [a-2] undulyburdensome, and [b] asks for material which isneither relevant to the subject matter of thislitigation nor reasonably calculated to lead tothe discovery of admissible evidence.

But this revision does not go far enough. Whileit solves the syntactical problem, it fails to cure theunderlying conceptual fuzziness, which resultedfrom the rote repetition of a formulaic objection.Conceptually, into how many categories doMegacorp’s objections fall? The answer depends onthe specifics of the document request andMegacorp’s tactics for opposing it. Is it objectingfor three separate reasons? Or really for only tworeasons, because the request’s burdensomeness

W R I T I N G T I P S . . .



arises from its overbroad scope? If the latter, thenthe sentence should read as follows:

Revision 2:Megacorp objects to the Request because it isoverbroad and therefore unduly burdensome,and because it asks for material which is neitherrelevant to the subject matter of this litigationnor reasonably calculated to lead to thediscovery of admissible evidence.

The addition of “therefore” binds together theparts of the first objection; the repetition of“because it” more clearly separates the first fromthe second.

This problem is worth lingering over for tworeasons. First, even good writers often have troublespotting it. Second, it can sometimes lead to drasticconsequences for a document’s organization, as thenext example demonstrates.

Before:Generally, the capital and surplus restrictionsrequire that at least 60 percent of the minimumcapital or surplus investments be made inobligations of the United States; any state; anyof New York State’s counties, districts, ormunicipalities; or certain mortgage loans onproperty in New York.

Judging by the placement of “or,” this sentence listsfour kinds of obligations: obligations of 1) theUnited States, 2) any state, 3) any of New YorkState’s counties, districts, or municipalities, or4) certain mortgage loans on property in NewYork. But the fourth makes no sense—“obligationsof certain mortgage loans”? Instead, these loans areobviously a different category of investment:

Revision 1:Generally, the capital and surplus restrictionsrequire that at least 60 percent of the minimumcapital or surplus investments be made either inobligations of the United States; any state; orany of New York State’s counties, districts, ormunicipalities; or in certain mortgage loans onproperty in New York.

Revision 2:Generally, the capital and surplus restrictionsrequire that at least 60 percent of the minimumcapital or surplus investments be made in either

• obligations of the United States, any state, orany of New York State’s counties, districts, ormunicipalities, or

• certain mortgage loans on property in NewYork.

A final example:

Before:Rule 11f-6(c) is generally a basis for argumentseither asserting that the proposal would requirethe registrant to violate its existing obligationsor that the proposal’s objective is too broad.

After:Rule 11f-6(c) is generally a basis for argumentsasserting either that the proposal would requirethe registrant to violate its existing obligationsor that the proposal’s objective is too broad.

A Misplaced “Only”

The word “only” is especially likely to floatloose from its proper place:

Before:To prove yourself, you only have to jumpthrough the first two hoops … .

So far, this sentence means the victim has tojump through the hoops as an alternative to doingsomething else (say, signing a pledge to bill 3,000hours a year). But the rest of the sentence says: “ …not all six.” What the writer means, then, shouldhave been expressed as:

After:To prove yourself, you have to jump throughonly the first two hoops, not all six.

Unimaginative Punctuation

We assume, of course, that your students knowall the rules of punctuation and never violate them.Even so, they probably miss opportunities to usepunctuation more imaginatively, and in particularfor two purposes: to change a sentence’s rhythm orto clarify its structure. (These two purposes oftengo hand in hand.)

For example:

Version 1:To implement the proposal, Widget Corp.would have to change its source of raw materialand therefore to breach existing contracts.



Version 2:To implement the proposal, Widget Corp.would have to change its source of raw material,and therefore to breach existing contracts.

By rule, the final comma in Version 2 has nobusiness being there. But it is helpful: Because itslows readers down a little, they land with a littlemore emphasis on the sentence’s final words,which deserve that extra attention.

Another example, of a different kind:

Before:Assume that one Megabank entity, for example,a nonbank subsidiary of the bank holdingcompany, purchases a limited partnershipinterest in a real estate limited partnership whilea second, affiliated Megabank entity, forexample, a bank, makes a loan to the limitedpartnership.

After:Assume that one Megabank entity (forexample, a nonbank subsidiary of the bankholding company) purchases a limitedpartnership interest in a real estate limitedpartnership while a second, affiliated Megabankentity (for example, a bank) makes a loan to thelimited partnership.

In the revision, the parentheses make it easier tosee that the examples are, in fact, parentheticals,and to separate them out from the sentence’sprimary substance.

Lack of Parallelism

We know, we know: This problem should havebeen cured in eighth grade. But it shows up indrafts we read with disconcerting frequency. Itmost often arises when a writer fails to put parallelideas into the same kind of grammatical container.The first may go into an independent clause, thesecond into a dependent clause, and so forth.

Before:Courts have cited the following factors: 1) theassignment was contained in the granting clauseof the mortgage; 2) the deed of trust was notexplicit in stating that the creditor need not takepossession or make demand before becomingentitled to the rents; and [here comes theproblem] 3) the use of the words “as additional

security,” “for the purpose of securing,” or theirequivalents.

For the sake of parallelism, the third item, like thefirst two, should be inside an independent clause,not a phrase:

After:… and (3) the mortgage or deed of trustcontained the words “as additional security,”“for the purpose of securing,” or theirequivalents.

In addition to keeping the grammatical formsparallel, try to keep the wording as similar aspossible:

Before:The primary questions are: 1) whether theindividual is a New York domiciliary, 2) if hehas a permanent place of abode in New York,and 3) the number of days he is physicallypresent in New York.

After:The primary questions are whether: 1) theindividual is a New York domiciliary, 2) he hasa permanent place of abode in New York, and3) he is physically present in New York for morethan 180 days.

Here is a less obvious example of the problem:

Before:The issue of good faith is most frequently raisedin connection with a limited partnership debtorformed to invest in real property and whichholds only one substantial asset.

This sentence could be reformed in several ways,based on substantive decisions about its content.Here are two possibilities:

Version 1:The issue of good faith is most frequently raisedin connection with a limited partnership debtorformed to invest in real property that holds onlyone substantial asset.

Version 2:The issue of good faith is most frequently raisedin connection with a limited partnership debtorthat was formed to invest in real property andthat holds only one substantial asset. [Thesecond “that” could be omitted, still leaving the



parallel structure of two verbs (“was formed” and“holds”) following the first “that.”]

The first version implies that we have alreadybeen discussing a real estate investmentpartnership, and are now adding “one substantialasset” as a feature of the partnership. The secondindicates instead that we have been discussing alimited partnership to which we are nowattributing two specific characteristics—investingin real estate and holding one substantial asset.

* * * *

As we said at the start, none of these problemsis serious enough to lose sleep over. Even the onesthat involve grammatical violations seldom preventa reader from understanding what a sentencemeans. But if you can persuade writers to focus onproblems of this scale, and to take them seriously,the result is a discipline that pays off in other ways:They begin to “see” sentences more precisely, not ashaphazard assemblages of words, but as miracles ofcareful engineering designed to sustain a heavylogical weight.

© 2003 Stephen V. Armstrong and Timothy P. Terrell



EINE KLEINELEGALRESEARCHMUSIK1

BY JAMES R. FOX

James R. Fox is the Director of the Law Library andProfessor of Law at Dickinson School of Law of ThePennsylvania State University in Carlisle.

For some of us who have taught legal researchforever, the task may become a sterile exercise andany trickery to bring life to the exercise bearsconsideration. Most artists have, until the lastcentury, used a form to discipline and channeltheir creativity. Poets follow the form of the sonnetor haiku. Musicians compose waltzes or classicalsymphonies. Adopting a form or discipline guides,and can inspire, the creativity of the artist. Thepoet has to find a clever rhyme, the musician theresonant counterpoint. By setting a form ordiscipline, we can force ourselves to be creative andinteresting for at least two or three minutes in atwo-hour legal research class. Not quite thecomposition of a sonnet, my Advanced LegalResearch class discipline for the last several yearshas been the use of theme music for each class.Here are a few (actually most) of the themes I haveconjured up for my classes.

Japanese flute music2 introduces my first class,which looks at sources of law used by differentlegal systems. The flute music is to the Westernclassical idea of music as common law and civil laware to Chinese law. In the West we look forpractical rules, while other systems look to divinerevelation in order to behave as the Creator wishes(Muslim law) or to an ideal of societal behavior inwhich law plays a marginal role (Chinese law). Butwe see that our system has some things in commonwith these other systems. For the next classstudents are assigned to use LexisNexis™ orWestlaw® to find an example where a judge in theUnited States has cited an unusual source such asrock lyrics, or quotes from movies or the Bible.

Before the first class a short assignment has thestudents find if blasphemy is still a crime in

England, the common law definition of blasphemy(using Blackstone’s Commentaries), and when itwas last prosecuted in a U.S. state of their choice.Should blasphemy be a crime? I then play “OhLord, Won’t You Buy Me a Mercedes Benz,” byJanis Joplin.3 Is it blasphemous?

Early in the semester the class takes up theproblem of how we organize information. Thestudents are given a list of book titles toalphabetize. Which goes first: Aardvark, My Pal orA. A. Milne, a Biography? It becomes obvious thatalphabetizing involves a number of arbitrary rulesthat, if ignored, can lead to not finding what youwant. To drive home the point, six Chinesecharacters are presented to be ordered and thestudents are challenged to develop rules for theirordering. The class goes on to an examination ofmenus such as the Yahoo menu and thehierarchical outlines used in digests. The obviouschoice of a theme for the class is something byMozart or Bach, Eine Kleine Nachtmusik or theGoldberg Variations played by Glenn Gould.4

Indexing is a fugue.Lest you think I am a classic-loving nerd

librarian, my next selection is “Godzilla” by BlueOyster Cult.5 “History shows again and again, howNature points out the folly of man, Godzilla.”Relying on technology can be our downfall is themessage of a class about how media affect researchtechniques. A review of various information storagemedia questions their reliability for archivalpurposes. Will your great-granddaughter be able toread the personal narrative you stored on a floppydisk? Interestingly, on the cover of the album, BlueOyster Cult poses in front of a bookcase full of oldlaw reports, a great graphic for your PowerPointpresentation.

The most obvious rock music theme for a classis John Cougar Mellencamp’s “Authority Song.” “Ifight authority, authority always wins.” This goeswith a class on court reports, court rules(particularly, rules about what gets published),depublication, stare decisis, and all that.

The Internet and, in particular, NORML (theNational Organization for the Reform of

“By setting

a form or

discipline,

we can force

ourselves to

be creative

and interesting

for at least

two or three

minutes in a

two-hour

legal research

class.”

O N T H E L I G H T E R S I D E . . .

1 A longer, incomprehensible version of this article, “AHermeneutic on the Utilization of Polyphony as an Ancillary Toolin Legal Research Instruction,” will not be published anywhere.

2 Japan Shakuhachi–The Japanese Flute, Kohachiro Miyata,shakuhachi (CD, Electra Nonesuch 9 72076-2).

3 Pearl, Janis Joplin (CD, Sony/Columbia B00000K2VZ).4 Johann Sebastian Bach, Goldberg Variations, Glenn Gould

(CD, BWV 988/Sony Classics SMK 52 594).5 Spectres, Blue Oyster Cult (CD, Sony/Columbia,

B0000025BW).



Marijuana Laws) has ruined a great statutory lawexercise that I used for years. How much marijuanamust I possess in California before I havecommitted a felony? With no obvious startingplace in the index under marijuana, this questionsent students to several different places in the code.One needs to determine both the amount ofmarijuana and the definition of a felony.Unfortunately, NORML’s Web site answers thequestion with links to all the relevant statutorycites.6 The theme for this class was the Red HotChili Peppers’ Californication.7 I have to go back tothe drawing board on this class. Wanting to keepthe Chili Peppers in my repertoire, this summer Iwill look for another California criminal statutethat does the trick. I still have“Supercallousmeanandnastyrightwinglegislation”by the Capitol Steps8 to introduce the legislativehistory class. I have a life-size cutout of Newt, ourguest “speaker” for the class, but he is fastbecoming ancient history.9

Not all of the musical themes come frommainstream commercial sources. At least onecomes from a distinctively nonmainstream yetcommercial source. Back in the good old dayswhen West was West, Bill Lindberg and his cohortsin the Law School group produced entertainingshows at the American Association of Law Librariesannual meetings with parodies such as “Old-Fashioned Book” or “Walt’s Waltz.” (Youremember the WALT terminal don’t you?)

So there are some of the themes that I use. Butthe challenge is for you to be creative and matchother themes to your classes. Vonda Shepard’ssongs from Ally McBeal come to mind as a fertileresource (“I’ve been down this road”?).10 It ishelpful to have a teenager in the house and actuallylisten to the music (after the obligatory admonitionto turn the volume down). Next year I am

determined to work in a song by my son’s favoritegroup, Weezer.11

In my favorite class I tap into my collection offiddle tunes and other real country music onRounder Records.12 I live on a small farm five mileswest of Carlisle, Pennsylvania, and have one classthere with a picnic thrown in. The farm provides asetting for some unusual topics. Before the classthe students go to the courthouse to do a deedsearch on the property. They check the propertyinformation available on LexisNexis or otheronline databases. When the students arrive they“field” research about 10 questions about the farm(How many outbuildings? Where is the septicsystem? How far is the house from the road?).Professor Noel Potter of the Dickinson CollegeGeology Department demonstrates how a survey isdone and we discuss the fact that the metes andbounds in the deed description do not close. Thisleads to questions about practice materials—howdo we correct the mistake? Plat books and localhistorical maps answer questions about referencepoints used in older descriptions of the property.U.S. Geological Soil Survey material raisesquestions about the development taking placearound the farm. In turn, questions of local codesand ordinances arise. Then we eat.

You may choose another rule to add a little jene sais quoi to your classes. In Air and Space Law Itry to pepper my PowerPoint presentations withvisual art. Most people miss the tiny figure ofIcarus falling into the sea in Brueghel’s The Fall ofIcarus. As I visit museums I am always on thelookout for a painting to use, just as a tune mayfind its way into an Advanced Legal Research class,if I am a little creative.

Finally, the last class ends with Roy and Dalesinging “Happy Trails.”13

© 2003 James R. Fox

“It is helpful to

have a teenager

in the house

and actually

listen to the

music (after

the obligatory

admonition

to turn the

volume

down).”

6 <www.norml.org>.7 Californication, Red Hot Chili Peppers (CD, Wea/Warner

Bros., B00000J7JO).8 A Whole Newt World, The Capitol Steps (audiotape, Capitol

Steps Productions, CSC1015).9 Life-size cardboard figures are available from

<www.elifesize.com> or <www.cardboardcutouts.com>.10 “Searchin’ My Soul,” Songs from Ally McBeal Featuring

Vonda Shepard (CD, Sony/550 B00000608D).

11 Weezer (Green Album), Weezer (CD, Uni/Geffen,B000051CAW) (a cut called “Simple Pages” may havepossibilities).

12 E.g., The Fuzzy Mountain String Band (LP, RounderRecords 0010).

13 Happy Trails: The Roy Rogers Collection, 1937–1990 [BoxSet] (CD, Wea/Rhino B000001Q18) or download the clip of thesong from <www.amazon.com>.



COMPILED BY DONALD J. DUNN

Donald J. Dunn is the Associate Dean for Library andInformation Resources and Professor of Law at WesternNew England College in Springfield, Mass. He is amember of the Perspectives Editorial Board. Thisbibliography includes references to books, articles,bibliographies, and research guides that could potentiallyprove useful to both instructors and students and includessources noted since the previous issue of Perspectives.

John R. Bunker, Essay, “You Could Look It Up”:The Judicial Opinions of Sol Wachtler on the NewYork Court of Appeals, 52 Syracuse L. Rev. 847(2002).

An examination of the major opinions(including dissents) of Judge Wachtler inthe areas of right to die, torts, constitutionallaw, and criminal law.

Barbara J. Busharis & Suzanne E. Rowe, FloridaLegal Research: Sources, Process, and Analysis, 2d ed.,2002 [Durham, NC: Carolina Academic Press,246 p.]

Designed primarily for use in conductingresearch in Florida law. Does not use samplepages.

Canadian Guide to Uniform Legal Citation[Manuel Canadien de la Reference Juridique], 5thed., 2002 [Ontario: Carswell Company Ltd., 450p.]

Covers case law, legislation, governmentdocuments, periodicals, monographs, andother secondary sources. In French andEnglish.

Herbert E. Cihak & Joan S. Howland eds.Leadership Roles for Librarians, 2002 [Buffalo, NY:William S. Hein & Co., 264 p.]

A series of essays from prominent lawlibrarians on what it takes to be an effectiveleader, e.g., as mentor, as coach, and asliberator. American Association of LawLibraries (AALL) Publications Series, no.66.

David Crump, Against Plain English: The Case for aFunctional Approach to Legal Document Preparation,33 Rutgers L.J. 713 (2002).

Suggests that it is not always a wise practiceto attempt to write every legal document inplain English because it may beuneconomical and unwise since some ofthese documents that use detailed legallanguage have withstood the tests of time.

Paul Duguid, The Social Life of Legal Information:First Impressions, First Monday, Issue 9, Sept. 2002,<www.firstmonday.org/issues/issue7_9/duguid/index.html>.

Argues that as information becomesincreasingly electronic, it is more important,not less important, that libraries continue toexist. In addition to being places for storinginformation, libraries are important for ameeting place for ideas and for socializing.

Stephen Elias & Susan Levinkind, Legal Research:How to Find and Understand the Law, 10th ed.[Berkeley, CA: Nolo Press, various pagings]

Another revision (the previous one was in2001) of a work designed for use by pro sesand others not in law school or with legaltraining.

Tom Goldstein & Jethro Lieberman, The Lawyer’sGuide to Writing Well, 2d ed., 2002 [Berkeley, CA:University of California Press, 284 p.]

Discusses the causes and consequences ofbad writing and details straightforwardremedies that will make writing morereadable.

F. Allan Hanson, From Key Numbers to Keywords:How Automation Has Transformed the Law, 94 LawLibr. J. 563 (2002).

A discussion of the consequences ofautomated information management oflegal materials. Concludes that “research inprint sources is conducive to a view of thelaw as a hierarchical system … whileautomated research pulls in the oppositedirection.” Id. at 597.

L E G A L R E S E A R C H A N D W R I T I N G R E S O U R C E S :R E C E N T P U B L I C A T I O N S



Harvard University. Board of Student Advisors,Introduction to Advocacy: Research, Writing andArgument, 7th ed. [New York, NY: FoundationPress, 210 p.]

A longtime standard that has been updatedafter more than six years. Now intended toserve as a text for moot courts as well as acompanion for any introductory lawyeringcourse taught from a litigation perspective.

Frank G. Houdek ed., State Practice Materials:Annotated Bibliographies, 2002– [Buffalo, NY:William S. Hein & Co., 1 vol., looseleaf ]

“[T]he primary intent … is to ensure thatresearchers can quickly find informationabout the sources they need to conduct statelaw research by providing up-to-date,annotated bibliographies of the basic legalpractice tools for each of the fifty states andthe District of Columbia in a single, easilyaccessible source.” Id. at xi. AALLPublications Series, no. 63.

Diana C. Jaque & Lee Neugebauer comps., LegalReference Books Review, 94 Law Libr. J. 645 (2002).

Succinct reviews of nine legal referencebooks published in 2001. Continues thereviews from earlier issues of Law LibraryJournal.

John P. Joergensen, The New Jersey CourtsPublishing Project of the Rutgers-Camden LawLibrary, 94 Law Libr. J. 673 (2002).

A review of the history, purpose,implementation, and progress of the NewJersey Courts Publishing Project. Suggestsimprovements that should be made.

Robert Laurence, Casebooks Are Toast, 26 Seattle U.L. Rev. 1 (2002).

Argues that Web-based course materials (thevirtual casebook) soon will replace thetraditional print casebook.

Richard A. Leiter ed., National Survey of StateLaws, 4th ed., 2002 [Farmington Hill, MI: GaleGroup, 700 p.]

An updated state-by-state comparison ofcurrent laws on subjects ranging fromabortion to employment discrimination andchild custody to interest rates. Coversconsumer, family, criminal, real estate, andemployment law.

Elizabeth A. Martin, A Dictionary of Law, 5th ed.,2002 [Cary, NC: Oxford University Press, 551 p.]

A standard law dictionary that focuses onthe law in Great Britain.

Mary F. Miller comp., Recommended Publicationsfor Legal Research, 2001, 2002 [Buffalo, NY:William S. Hein & Co., 167 p.]

Selected from titles announced in 2001 andarranged alphabetically by main entry.Contains a listing of the subjects and a mainentry index. Annual.

Robert A. Pikowsky, An Overview of the Law ofElectronic Surveillance Post September 11, 2001, 94Law Libr. J. 601 (2002).

“[E]xamines the significance of the USAPATRIOT Act, enacted in the wake of theSeptember 11 terrorist attack, on the law ofelectronic surveillance [and] … discusses thelikely effects of the Act on universities andlibraries.” Id.

Bernard D. Reams Jr. & Christopher T. Anglimcomps., USA PATRIOT Act: A Legislative Historyof the Uniting and Strengthening of America byProviding Appropriate Tools Required to Interceptand Obstruct Terrorism Act, Public Law No. 107-56(2001), 2002 [Buffalo, NY: William S. Hein &Co., 5 vols.]

A collection of legislative histories of thestatutes enacted by Congress to protect thelives and property of Americans followingthe attacks of September 11, 2001. Hasramifications for library records. The firsttitle in the publisher’s new Domestic LawSeries.



Roget’s International Thesaurus, 6th ed., BarbaraAnn Kipfer, ed., 2001 [New York, NY:HarperResource, 1,248 p.]

While not a law book, this is a source thatshould be in every law library. It is helpful ifall one is trying to do is find a word to useother than “thesaurus.”

Howard T. Senzel, Looseleafing the Flow: AnAnecdotal History of One Technology for Updating,44 Am. J. Leg. Hist. 115 (2000).

An extensive, erudite, and interestingdiscussion of the development of looseleafpublications. Over 80 pages with more than550 footnotes.

Amy E. Sloan & Steven Schwinn, Basic LegalResearch Workbook, 2002 [New York, NY: AspenPublishers, 160 p.]

Designed to complement the authors’ BasicLegal Research: Tools and Strategies. Providespractice with key print and electronicsources, using four-tiered exercises thatprogress from guided practice toindependent research skills.

Michael R. Smith, Advanced Legal Writing:Theories and Strategies in Persuasive Writing, 2002[New York, NY: Aspen Law & Business, 360 p.]

Divided into five main parts: literaryallusion; the three basic processes ofpersuasion (logic and rational argument,emotional argument, and establishingcredibility); rhetorical styles; persuasivewriting strategies based on psychologytheory; and the moral implications of beingan effective persuasive writer.

Ronald F. Wright & Paul Huck, Counting CasesAbout Milk, Our “Most Nearly Perfect” Food,1860–1940, 36 Law & Soc’y Rev. 51 (2002).

An article that discusses the challenges ofproviding safe milk. Provides references toapproximately 450 cases relating to milkand milk products.

Aleksandra Zivanovic, Guide to Electronic LegalResearch, 2d ed., 2002 [Markham Ontario:Butterworths Canada, 264 p.]

Covers techniques for searching the Web, anoverview of online legal databases, andreferences to various Web sites. Deals withthe law in Canada.

© 2003 Donald J. Dunn






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