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Teaching Legal Research and WritingPERSPECTIVES


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Yes, You Will Really Use Algebra When You Grow Up: Providing Law Studentswith Proof That Legal Research and Writing Is Essential in the Real World

Kelly M. Feeley and Stephanie A. Vaughan ........................................................105

Keeping It Real: Using Contemporary Events to Engage Students in Written andOral Advocacy

Emily Zimmerman ..........................................................................................109

TEACHABLE MOMENTS FOR STUDENTS … Researching Uniform and Model Laws

Kristin Ford .....................................................................................................114

TEACHABLE MOMENTS FOR TEACHERS … Why Law Review Students Write Poorly

Louis J. Sirico Jr. .............................................................................................117

Common Student Citation ErrorsWayne Schiess ..................................................................................................119

Order What Are Your Words In? How Foreign Languages Can Help You Teach the Structure of Legal Writing

Sheila Simon ...................................................................................................124

WRITING TIPS … The Dangers of Defaults

Stephen V. Armstrong and Timothy P. Terrell .....................................................126

TECHNOLOGY FOR TEACHING … Four Pointers to Effective Use of PowerPoint in Teaching

Angela Caputo .................................................................................................132

OUR QUESTION—YOUR ANSWERS

Judy Meadows and Kay Todd ...........................................................................137

LEGAL RESEARCH AND WRITING RESOURCES: RECENT PUBLICATIONS

Donald J. Dunn ..............................................................................................139

C O N T E N T S

VOL. 10

NO. 3

SPRING

2002

YES, YOU WILL REALLYUSE ALGEBRA WHEN YOUGROW UP: PROVIDINGLAW STUDENTS WITHPROOF THAT LEGALRESEARCH AND WRITINGIS ESSENTIAL IN THEREAL WORLDBY KELLY M. FEELEY AND STEPHANIE A. VAUGHAN

Kelly M. Feeley is a Visiting Instructor of Legal Researchand Writing, and Stephanie A. Vaughan is the AssociateDirector of Legal Research and Writing at StetsonUniversity College of Law in St. Petersburg, Fla.

Every teacher is faced with that dauntingquestion from the student with the very skepticallook: “Will we really use this stuff in the realworld?” And every teacher responds withemphatic conviction, “Of course you will.”However, saying it is so and getting the studentsto believe you are two very different things. Thisis especially true during first-year legal researchand writing courses. Students question why webother to teach them “paper” or “book” researchwhen computer research is available. Studentswonder if they will ever write an inter-officememo or a demand letter in “real life,” or if wejust enjoy torturing them with additionalassignments. Although we assure the students that this is more than a hazing ritual, they seem to require more proof; they need to hear it fromthe proverbial “horse’s mouth.” That is why theStetson University College of Law Research andWriting II program includes three “real world”class sessions.

To provide students with the incentive to workhard and reap the benefits of solid legal researchand writing skills, we invite practicing attorneys,

judges, and upper-level law students who haveclerked for law firms, government agencies, orcourts to speak to our students. Theseparticipants help solve or demystify the equationof why honing research and writing skills early on will help students land clerking jobs soonerand shape better attorneys. The demystificationbegins during the first weeks of the Research andWriting II semester, which is the semester inwhich we focus on persuasive writing. We present a real-world panel consisting of attorneys, judges,

106106PERSPECTIVESPERSPECTIVES

Spring 2002 Perspectives: Teaching Legal Research and Writing Vol. 10

and upper-level law students. We continue to solvethe equation during the final two days of thesemester, after students turn in their final appellatebrief. One day we focus on “finding the dirt”—conducting factual research; the second day wesimulate a clerking assignment with practicingattorneys.

Research and Writing in the Real World

In math class, it helped to have a problem putinto context instead of being given an equation in a vacuum. The solution was the dreaded wordproblem. But those word problems applied to real-life situations. Students realized it wasimportant to know how much gas their car woulduse on a 2,300-mile trip if they traveled 65 milesper hour, and their car got 19 miles per gallon.

To give law students that same perspective,focus, and interest about legal research and writing,we use a panel of practicing lawyers, judges, andlaw students to relay real-life situations in whichresearch and writing skills are invaluable. It is notenough that students listen to the research andwriting faculty day in and day out. We like to givethem a taste of what practitioners and judges thinkabout, see, and like or dislike about research andwritten products in the real world. This panel iscalled “Research and Writing in the Real World”and is held during the first or second week ofResearch and Writing II.

The panel usually consists of at least one judge,a longtime practicing attorney, a recent graduate,and an upper-level law student who has clerked fora law firm, agency, or court.1 The panelists addressthe following topics:

• computer versus book research (cost,availability, preferences)

• research tools (most/least used, most/leasthelpful, most/least misunderstood)

• judges’ expectations (work product,performance, professionalism)

• attorneys’ expectations (skills on arrival versus on-the-job training, time management,work product)

• application of research and writing skills (the similarity between class assignments and real-world projects, the frequency of brief andmemo writing, the reality of updating andrefining research)

An entire class is devoted to this panel. Theprofessor moderates the panel and asks specificquestions on the above topics, and the students are encouraged to interject questions.2 The classconcludes with the panelists giving advice andsharing personal experiences.

We find that this panel, used early on in thepersuasive-writing semester, encourages moststudents to put a great deal of effort into theirwriting.3 They really see what research and writingmeans to the legal community. They realize thateven though the research and writing curriculumis stringent and time-consuming, it will be worththe effort in the long run.4 It is a good idea toshow them this up front. And the panelists enjoycoming to speak to new, idealistic students. It is agreat networking tool because the panelists willusually stay after class to talk to any student whomakes the effort. This real-world experience lendsperspective to the dreaded word problem knownas research and writing.

Perspectives: Teaching Legal Research and Writingis published in the fall, winter, and spring of each year by West Group.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 Group. Readers areencouraged to submit brief articles onsubjects relevant to the teaching of legalresearch and writing. Manuscripts,comments, and correspondence should besent to Mary A. Hotchkiss,University of Washington School of Law,1100 N.E. Campus Parkway,Seattle, WA, 98105-6617, (206) 616-9333,Fax: (206) 616-3480,E-mail: [email protected] subscribe to Perspectives, use the card on the back cover of this issue or write or call: Ann LaughlinWest Group Product and Client CommunicationsD5-S238610 Opperman DriveEagan, MN 55123(651) 687-5349

1 Through experience, we have found that the best panelistsinclude judges who review a significant number of writtenmotions, memoranda, and briefs; civil litigation attorneys whoprepare motions, memoranda, and briefs and who reviewdocuments prepared by associates and law clerks; an upper-levellaw student who clerked for a small law firm; and an upper-levellaw student who clerked for a larger firm or judge. This diversityavoids giving a one-sided view of what is expected and required oflaw clerks and lawyers.

2 We share the topics with the panelists a week before thepresentation to avoid a renegade panelist from veering from thedirection of the class.

3 The success of this program is evidenced by students’feedback. For example, one student commented, “R&W in generalis the most important class in law school. I think hearing people[who] were practicing talk about the skills R&W taught, or at leastintroduced us to, made me pay a little more attention.” Whileanother student told us, “Hearing the attorney talk about theimportance of ‘learning’ R&WII concepts made me want to workharder so I would have the necessary building blocks when I startedworking.”

4 To complete the real-life equation, we conduct a researchconsultants program to keep up-to-date with trends. Lawrence D.Rosenthal, Are We Teaching Our Students What They Need toSurvive in the Real World? Results of a Survey, 9 Perspectives:Teaching Legal Res. & Writing 103 (Spring 2001). The program isdesigned to determine whether the Research and Writingdepartment is adequately preparing the students for their summerclerkships. Id. at 103. The results were positive, and the students feltas though they were intricately involved in the process. Id. at 108. Inthe summer of 2001, Stetson’s Research and Writing faculty alsoorganized a roundtable discussion with local attorneys and librariansto keep current on research trends in law firms and courthouses.

Vol. 10 Perspectives: Teaching Legal Research and Writing Spring 2002


“Finding the Dirt”—Conducting Factual Research

Equations contain several variables. Studentsmust not only identify those variables, but alsogather information about them. In the legalcontext, those variables include the players andfacts involved in any given case. Although mostresearch and writing courses focus on legalresearch—such as finding statutory or case law—they often omit an important part of theequation—researching factual information.5

Legal research and writing courses typicallyprovide students with all of the factual infor-mation they need to complete the assignment.However, we know that in the real world, factualresearch can be crucial to success. Stetson’s“Finding the Dirt” class demonstrates how to findimportant factual information. It emphasizesfinding the good, the bad, and the ugly aboutclients, opponents, witnesses, experts, and otherparties, to give the case perspective and meaning.

Since students are already familiar withcomputer-assisted legal research, this class takesthat skill one step further. Westlaw®, LexisNexis,and the Internet are great tools for doing researchon individuals and corporations. To illustrate thatpoint, the professor conducts the class by using the classroom computer, projector, and screen sothat all students can view the demonstration.Additionally, students are required to bring theirown laptop computers to class that day.6 A studentvolunteers his or her name, or a random name ischosen, to conduct searches regarding newsworthyevents, property owned, corporate involvement,vital records, ancestry, or criminal activity. Forexample, in both Westlaw and LexisNexis, searchescan be run in the following types of databases:public information, records, and filings ornewspapers, magazines, and news. Finally, on theInternet, students can run searches in<www.ancestry.com> for family histories,<www.anybirthday.com> for birth dates, or<www.infospace.com> for addresses and phone

numbers. Also, most states have a Web site thatallows access to criminal records, court calendars,corporation status, and much more (e.g., inFlorida, the Web site is <www.myflorida.com>).The students learn that these searches can producedetailed information such as someone’s nextscheduled court appearance or property taxes paid for the previous year.

Although some students are familiar withprivate investigators who can search court andother public records and perform surveillance, this class teaches them to conduct preliminary and even in-depth searches themselves veryinexpensively. Students pay particular attention in this class because they discover more ways toparticipate in the fact-finding process as opposedto working with only facts generated by theprofessor.7 This class also emphasizes howthorough preparation and investigation are thebest ways to represent a client. Not knowing all of the factors in the equation can result in surprise,poor representation, and even malpractice. Toavoid these results, students learn how toinvestigate themselves.

Simulated Clerking Experience

No math class would be complete without atest. Therefore, the last factor in the real-worldequation is for students to try their hands at amock clerking assignment. This completes thecycle from being told how important research and writing skills are to actually applying thoseskills to a project.

In this last class of the semester, we secure anattorney—who often heads the summer associateprogram at a local law firm—to conduct a mockresearch assignment with the class. The attorneybrings one or more assignments and either handsout the assignments on a sheet of paper ordiscusses them orally. We ask that the assignmentbe similar, in terms of length and complexity, toone that would be given to a summer associate.For approximately 20–25 minutes, students work individually or in small groups to construct

“This class also

emphasizes

how thorough

preparation and

investigation

are the best

ways to

represent a

client.”

5 Attorneys also can use fact investigation to organize a case file, to develop a theory, and to ensure that each element of a claim is met. Paul J. Zwier & Anthony J. Bocchino, FactInvestigation: A Practical Guide to Interviewing, Counseling, andCase Theory Development (NITA 2000).

6 Stetson requires each entering student to have a laptopcomputer.

7 Stetson has started writing memo and brief problems that require students to conduct both factual and legal research.For example, in one memo problem regarding bribing FloridaGov. Jeb Bush, it was important for students to discover that thedefendant, a 1949 graduate of Yale University, had attended thatschool at the same time as Bush’s father, former president GeorgeH.W. Bush.



a research plan. The students must spot issues,choose the best research tools, and evaluate thetime and costs involved to complete theassignment. The attorney then calls on anindividual or group to present its plan. The classdiscusses the pros and cons of each approach, and the attorney gives feedback about thecorrectness, ingenuity, and feasibility of each plan. Additionally, the attorney addresses whatfirms expect from summer associates regardingcomplexity of assignments, number ofassignments, and time management. The class also provides the attorneys the opportunity tomeet and interact with students who might applyfor summer clerkships with the attorneys’ firms.

The students feel the real-world impact ofknowing how to evaluate a problem and how tosolve it—they literally solve the equation. Theclass also allows the students to brainstorm, becreative, and receive feedback from a “real”attorney rather than “just” a professor. This classalso reinforces the importance of organization andresearch skills.

Conclusion

The truth is, algebra is part of our everydaylives. It took years for most students to accept thattruth. At Stetson University College of Law, we donot want our students to take years to understandand accept the importance of research and writing.We employ these real-world classes to make thatreality clearer and more believable early in lawschool.8 The more real-world exposure thestudents get, the more appreciative they are of theskills taught in law school. The sooner we cananswer why algebra is really important, the betterattorneys we will produce.

© 2002 Kelly M. Feeley and Stephanie A. Vaughan

“The students

feel the real-

world impact

of knowing

how to

evaluate a

problem

and how to

solve it—

they literally

solve the

equation.”

8 The success of these real-world classes caused us to add anew real-world class for the fall 2001 semester. This new classfocuses on the importance of billing, the ethics involved in billing,and the relationship between the time billed, the amount charged,and the attorney’s productivity rating. This supplements atimekeeping/billing exercise assigned to the students early in thesemester. In that assignment, the students keep track of and record“billable” time, which includes studying and attending classes,preparing outlines for classes, and preparing research and writingassignments.



KEEPING IT REAL: USING CONTEMPORARYEVENTS TO ENGAGESTUDENTS IN WRITTENAND ORAL ADVOCACY1

BY EMILY ZIMMERMAN

Emily Zimmerman is a Legal Writing Instructor atVillanova University School of Law in Villanova, Penn.

Introduction

Writing and oral argument are not passivepursuits, and learning to write and argue orallycannot be either. While it is clear that we mustengage our students in the process of learningwritten and oral advocacy, the question remainshow to do so. Some students enter law school witha passion for the law or, at least, some aspect of it.This passion can focus a student’s attention andinvest a student in his or her legal education.Many students, however, do not feel a connectionto the law or its study. For these students to investthemselves in learning written and oral advocacy,we must bridge the gap between their preparationto be advocates and their role as advocates oncethey become practicing attorneys. In other words,we must make clear that advocacy is not anabstract pursuit but an activity that involves realissues that are of pressing concern to real people.

This article discusses two methods that I haveused to bring reality into the classroom to facilitatemy students’ engagement in legal advocacy: (1)using a factual scenario from a local newspaper fora series of exercises to introduce my students toadvocacy and brief writing, and (2) assigning mystudents to observe and critique an actual oralargument to learn about not only the mechanics ofappellate advocacy but also the very real-worldcontext in which it occurs. Both of these exercisesenabled students to take an active role in learning

advocacy skills by engaging in real-world legalscenarios.

Using a Real ScenarioReported in a LocalNewspaper

In the first semester of their legal writingcourse, my students learned how to write a legalmemorandum: an objective, nonargumentativelegal document. In their second semester, mystudents would learn how to write an appellatebrief and would present an oral argument on thatbrief. So that my students would understand theadvocacy role, I assigned them to that role. WhileI could have assigned my students to playadvocates in the context of a hypothetical scenario,I thought that this might impede their assumptionof their roles. In my experience, some individualscan have a hard time wholeheartedly adoptingassigned roles in the context of fabricatedscenarios. To avoid any such resistance andfacilitate my students’ engagement with their roles,I had them become advocates in the context of anactual criminal case. I hoped that using this casewould impart a sense of reality and immediacy tothe role-play that a fictitious scenario would not.

Therefore, after laying the groundwork with anintroduction to the role of a legal advocate and theappellate brief, I assigned a series of exercisesarising out of a homicide case described in a recentedition of a Philadelphia daily newspaper. Thisshort article contained a description of ahomicide-by-vehicle case in which the defendanthad run into and killed a woman with hismotorcycle, fled the city for five years, and thenreturned and pleaded guilty to his crimes.2

I selected this article as the basis for theexercises for three reasons. First, the articlecontained facts that could be used to supportarguments on behalf of both the prosecution andthe defense. Second, the article straightforwardlydescribed a compelling human drama, whichwould keep my students’ attention and leave themfree to focus their energies on their advocacyprojects. Third, the article was short enough thatthe students could work with it in class without

2 Dave Racher, Conscience Drives Him to Admit to FatalHit-Run, Phila. Daily News 24 (January 10, 2001). I would behappy to provide the full text of the article to anyone who isinterested.

1 The author is grateful to Professor Louis Sirico for hisvaluable feedback in the preparation of this article.

“[W]e must

make clear

that advocacy

is not an

abstract

pursuit but an

activity that

involves real

issues that are

of pressing

concern to

real people.”



exhausting the whole class period just reading anddigesting the article.

I had the article copied onto two differentcolors of paper: blue and yellow. During thesecond class of the semester, I distributed thearticle to the class, giving half of the students the article on blue paper and half of the studentsthe article on yellow paper. The students whoreceived the blue copies of the article were assignedto be prosecutors; the students who received theyellow copies of the article were assigned to bedefense attorneys. I then divided the class intogroups of three students, with each groupcomposed exclusively of either prosecutors ordefense attorneys.

I instructed each group to draft a statement of facts that reflected its particular perspective,using only those details provided in the article.The students readily undertook this assignment,carefully examining the article to determine howto present the facts in a manner that wasconsistent with their positions as eitherprosecutors or defense attorneys.

After the students had time to draft theirfactual statements, we reconvened as a class. The students then shared some of their drafts withthe class, and we discussed how the statements offact varied depending upon the positions of thedrafters. The students’ factual statements provideda basis to discuss how the same fact could be useddifferently depending on one’s perspective. Forexample, the article’s opening statement that thedefendant’s “conscience bothered him,” could beused by the defense to show the defendant’sremorse or by the prosecution to show thedefendant’s consciousness of guilt. The students’factual statements also illustrated how differentfacts might be emphasized by the prosecution ordefense. For example, the prosecution might focuson the running down and killing of the victim,and the defendant’s flight and ensuing five-yearabsence, while the defense might focus on thedefendant’s turning himself in and hispsychological and physical condition following the incident.

I had two goals for this exercise. Primarily, I wanted my students to actively participate in the process of constructing a statement of facts as advocates, taking the assignment seriously and becoming absorbed in the process. Second,

I wanted the assignment to be manageable,nonintimidating, and—dare I say it?—fun.

Choosing a scenario based on a currentcriminal case reported in the paper enabled me toaccomplish these goals. Because the students werepresented with a real, active criminal case, theyhad no apparent difficulty immersing themselvesin their assigned roles. The students knew that thecase was an actual scenario faced by a prosecutorand defense attorney. The exercise was, thus,explicitly connected to the work of real attorneys,motivating students to participate.

Moreover, writing a statement of facts using areal case validated the legitimacy of what thestudents were reading in their textbooks andhearing from me. Both the textbook and Iexplained that an advocate’s position influences the presentation of the facts of a case and providedexamples of this lesson. By writing their ownstatement of facts, using the actual facts of a realcase, the students experienced the process ofpresenting facts as advocates and therebydemonstrated for themselves the connectionbetween their class lessons, their class exercises,and the practice of law. Knowing the practicalsignificance of this particular lesson would,hopefully, facilitate the students’ receptiveness tofuture lessons as well.

My use of the article did not stop with thestatement of facts exercise. Rather, I built upon mystudents’ familiarity with the factual scenariopresented in the article and identification withtheir assigned roles to introduce them to argumentitself. Specifically, I assigned each student to writea sentencing argument for the court for the casedescribed in the article.3

To maintain continuity between theassignments, the students retained their roles asprosecutor or defense attorney: those students whowrote statements of facts as prosecutors madesentencing arguments as prosecutors; thosestudents who wrote statements of facts as defenseattorneys made sentencing arguments as defenseattorneys. By retaining roles, the students couldfocus on their arguments and not have to worryabout switching from one side to the other. I also

“I instructed

each group

to draft a

statement

of facts that

reflected its

particular

perspective,

using only

those details

provided in

the article.”

3 I gave the students this assignment at the end of the classperiod during which they had written their statements of fact.The students were to complete the assignment for our next classmeeting.



hoped that this continuity would enable thestudents to feel more invested in their argumentsand, thus, approach the assignment moreenthusiastically.

Although the students’ ultimate goal for thesemester was to write and argue an appellate brief,I thought that writing a sentencing argumentwould be a more approachable introduction toadvocacy. Most students have no familiarity withappellate brief writing when they enter law school;however, many students have been exposed tosome semblance of trial arguments throughfictional television programs and broadcasts ofactual courtroom proceedings. Through thesentencing argument assignment, I hoped tointroduce my students to legal advocacy in amarginally familiar and less intimidating context.In this way, my students could focus on makingsubstantive arguments without worrying abouttheir unfamiliarity with appellate brief writing.

In fact, the sentencing argument was aneffective introduction to advocacy, helping thestudents become accustomed to taking a positionand expressing their arguments in writing.Moreover, the students’ sentencing argumentspossessed traits of successful appellate arguments:the arguments were sincere, were supported byreferences to the underlying facts, andincorporated equity and policy arguments.

With a factual statement and sentencingargument under their belts, I assigned my studentsone final project using the article. Specifically, asmy students began working on their gradedappellate briefs, I instructed them to draft aQuestion Presented for a hypothetical appeal ofthe defendant’s sentence. By using the article forthis assignment, my students could undertake aforeign task—drafting a Question Presented—in a familiar context. In this way, the studentscould focus on the task at hand, continuing theirrepresentation of a real client in a real case, whilepracticing a new skill.

In order to learn to be effective brief writers,students must be engaged in the written advocacyprocess. As legal writing professors, we mustfacilitate our students’ absorption in this process.One way to do this is to enable our students toassume an advocacy role that is realistic andcompelling. By assigning students to assume an

advocacy role in a case that they know to be realand current, we can promote our students’identification with this role and enthusiasm for their assignments. Students know that they are being asked to assume roles in scenarios facedby real attorneys and immediately see theapplicability of the lessons they learn in theclassroom to their future lives as lawyers. Studentsare, therefore, even more motivated to learn in the classroom and participate meaningfully intheir assignments.

Could I have constructed a realistichypothetical to use for the progression of exercisesI assigned to my students? Of course. Would thishypothetical have caught my students’ attentionand enabled my students to identify with theirroles as easily? I don’t think so. Rather, I believethat knowing that they were being asked toassume roles in connection with a real casefacilitated my students’ identification with theseroles and serious attention to the assignments. My students knew from the start that they weredealing with a scenario that actual attorneys hadfaced, not a contrived factual scenario. I, therefore,did not have to overcome any resistance to thevalidity of the scenario, and my students coulddevote their full attention to the assignments.4

Observing and CritiquingActual Appellate Arguments

In addition to importing actual events into the classroom as the basis for assignments, we cansend our students into the world beyond theacademy to experience real legal advocacy. Byseeing attorneys engaging in the skills that we areteaching, our students can better understand thesignificance of our classroom instruction. Studentswill, presumably, be more focused and engaged in their studies if they appreciate how meaningfultheir studies are to their future careers. Tointroduce my students to appellate advocacy and provide a context for their classroom learning,I instructed them to observe and critique an actualappellate argument.

4 Obviously, there are times when we must createhypothetical scenarios to advance our students’ education.However, even when we cannot use actual cases for our exercises,we can construct scenarios that are as realistic and engaging aspossible.

“My students

knew from

the start that

they were

dealing with

a scenario

that actual

attorneys

had faced,

not a

contrived

factual

scenario.”



During the third week of the semester, theywere to observe and critique an appellate argumentof their choosing. Because of my law school’sproximity to Philadelphia, my students couldchoose to watch an argument in either state orfederal court.5 My students also had the option ofwatching an appellate argument elsewhere in thecountry. One of my students, in fact, observed anargument in the United States Supreme Court.

Since observation alone can be a passiveundertaking, particularly when what is beingobserved is legal argument, I told my students towrite a short critique of the argument that theyobserved. I instructed them to prepare the critiquein order to focus their observations and requirethem to be active observers, engaged in andattentive to the arguments.6

Since my students were generally unfamiliarwith oral argument, I prepared an assignmentsheet to guide their observation and critique. The instructions told the students to focus theircritique on the attorneys’ presentation of theirarguments and described particular aspects of theattorneys’ presentation that the students shouldexamine (for example, whether the attorneys’arguments were logical and coherent, whether theattorneys were in control of their arguments,whether the attorneys spoke clearly and audibly,and whether the attorneys were respectful of thecourt). I also asked the students to discuss how thearguments met their expectations and how thearguments differed from what they had expected.

I had four goals in assigning this introductionto appellate advocacy to my students. First, I

wanted my students to see in practice the differentaspects of oral argument that we would be talkingabout in class (e.g., preparation, organization,comportment) and to experience themselves thepractical impact of these different aspects ofattorney behavior (e.g., an attorney who speakstoo softly and/or too quickly will not beunderstood). I hoped that my students wouldbecome more conscious of the factors that makean effective presentation and would internalizetheir critiques of the arguments when preparingfor and presenting their own arguments.

Second, I wanted my students to observe thatoral argument styles are individualistic: that thereis not one right way to present an oral argument.Students who are unfamiliar with appellateadvocacy and courtroom presentation in generalmay believe that there is a particular “courtroompersona” that they must adopt in order to besuccessful advocates. Seeing practicing attorneyswith different personal styles can prove to studentsthat there is not one right way to present anargument. Students can also judge for themselveswhat styles they find to be particularly effective orcounterproductive.

Third, I hoped that the observation andcritique assignment would demystify oralargument. Oral argument is foreign to moststudents and intimidating to many. Students mayfeel that successful advocates are perfect at whatthey do: always calm, smooth, dynamic, andarticulate. Obviously, this is not the case. Bywatching actual oral arguments, students get arealistic and more approachable view of appellateadvocacy. Students see that even the most effectiveadvocate will fumble for words at times ormisunderstand a judge’s question. Especially asthey prepare for their first oral argument, it can bereassuring for students to see that effectiveadvocates do not have to be flawless advocates andthat there is a range of attorney competence in thecourtroom.

Fourth, I wanted my students to experience thecontext in which oral advocacy occurs: anexperience that can only be obtained by physicallysitting in an actual courtroom during argument.My students observed that oral argument does not

5 Obviously, not all law students have the luxury of sucheasy access to appellate courts. However, students can accessvideotapes of actual appellate arguments and, if nothing else,transcripts of actual arguments. In addition, moot courtarguments are a valuable resource for first-year students, even if they do not replicate the experience of an actual argument.Moreover, even with relatively easy access to appellate courts, it can be very difficult for first-year law students to make the timeto observe such arguments. In fact, because of the many demandson their time, I subsequently amended the assignment to allowstudents, if necessary, to observe and critique a moot courtargument.

6 The students’ critiques were due by the Friday of the firstweek that we were going to focus on oral argument in class. I set thisdeadline to ensure that the observation experience would providecontext for our classes and the students’ own arguments to follow.

“Since my

students were

generally

unfamiliar

with oral

argument,

I prepared

an assignment

sheet to

guide their

observation

and critique.”



occur within a hermetically sealed environment.Rather, arguments occur in courtrooms wheremultiple arguments are scheduled on any givenday, where attorneys and other observers arecoming and going, and where judges may conversewith each other and engage in other distracting(and distracted) behavior while an attorney ispresenting argument.

In this regard, the experience of watching anoral argument in context cannot be replicated.Moot court arguments, the only other livearguments that students can observe, provideexposure to argument in a vacuum: away from thecontext in which argument actually occurs and inan optimal environment (attentive and preparedjudges, attentive and prepared advocates, attentiveaudience). Moot court arguments are aninvaluable resource for our students (both asobservers and as participants), but they do not giveour students a complete picture of legal advocacy.

Understanding the context in which argumentoccurs can focus students’ attention on the skillsthat must be mastered to present an effective oralargument. For example, students who appreciatethat their arguments will be among the manyheard on any given day and that their argumentswill take place in courtrooms where there may bemany distractions will commit themselves topreparing clear, direct, and concise arguments toensure that they communicate their main pointsto the court.

Observing actual oral arguments andunderstanding the real-world context in whicharguments occur provide a foundation for studentsto develop their own argument abilities. Studentsexperience for themselves the impact of skillful,and less skillful, presentations and can apply thoseexperiences to their own arguments. Moreover,observing and critiquing actual oral argumentsputs the students’ classroom instruction into areal-world context, thereby validating what thestudents learn in class and further motivating thestudents to immerse themselves in their ownargument preparations.

Conclusion

As law professors, we have a responsibility toprepare our students to be competent anddedicated advocates. As legal writing and advocacyprofessors, we require our students to be activeparticipants in this process (e.g., by writingmemoranda and briefs and presenting oralargument). The more engaged our students are inlearning how to be effective written and oraladvocates, the more successful they will be as bothstudents and attorneys. We can engage ourstudents by using contemporary events to createmeaningful and absorbing assignments. Moreover,by learning legal writing and advocacy in thecontext of actual events, our students will betterappreciate the connection between what they arelearning in the classroom and their futureprofessional lives and will, accordingly, be moremotivated to learn inside the classroom. As aresult, our students will be better served by us andbetter prepared to serve their clients.

© 2002 Emily Zimmerman

“We can

engage

our students

by using

contemporary

events

to create

meaningful

and absorbing

assignments.”



RESEARCHING UNIFORMAND MODEL LAWSBY KRISTIN FORD

Kristin Ford is the Legislative Librarian at the LegislativeServices Office of the Idaho Legislature in Boise.

Teachable Moments for Students ... is designed toprovide information that can be used for quick andaccessible answers to the basic questions that arefrequently asked of librarians and those involved inteaching legal research and writing. These questionspresent a “teachable moment,” a brief window ofopportunity when—because he or she has a specific needto know right now—the student or lawyer asking thequestion may actually remember the answer you provide.The material presented in this column is not meant to bean in-depth review of the topic, but rather a summary ofthe main points that everyone should know. It is acompanion to the Teachable Moments for Teacherscolumn that gives teachers an opportunity to describe aspecial moment of epiphany that changed their approachto presenting a particular topic to their students. Readersare invited to submit their own “teachable moments forstudents” to the editor of the column: Barbara Bintliff,University of Colorado Law Library, Campus Box 402,Boulder, CO 80309, phone: (303) 492-1233, fax: (303) 492-2707.

When researching judicial interpretations of astatute or looking for legislative intent, a helpfulresearch angle that is sometimes overlooked is tocheck to see whether the pertinent statute is auniform, model, or “borrowed” law. What arethese laws? Where do they come from? How arethey useful?

Model or Uniform Law?

The line differentiating model laws fromuniform laws is often blurred. Generally modelcodes emerge from the work product of any ofseveral scholarly entities such as the American Bar Association (e.g., Model Code of ProfessionalResponsibility), the American Law Institute (ALI)(e.g., Model Penal Code), the Council of StateGovernments,1 or the National Conference ofCommissioners on Uniform State Laws, to name

just a few. If the act or statute you are researchingdescribes itself as “uniform” (e.g., Uniform ProbateCode, Uniform Child Custody Jurisdiction Act,Uniform Electronic Transactions Act), it is likely2

to be the product of the National Conference ofCommissioners on Uniform State Laws(NCCUSL). Sometimes a uniform act is the resultof a collaboration between entities, as in the caseof the Uniform Commercial Code, which is anongoing joint effort of the American Law Instituteand the NCCUSL.

In theory, a uniform law would read exactly the same in each state that has adopted it. Therationale is that uniformity of state laws in someareas is important for reciprocity reasons (e.g.,Uniform Child Custody Jurisdiction Act) or topromote ease of conducting commerce in multiplestates (e.g., Uniform Commercial Code).Widespread adoption of uniform laws hasprobably been most successful in the businessenvironment. By contrast, model laws are offeredup as a recommended example, but strictadherence to every word is not deemed essential.Model laws can be edited and modified to suit anindividual state’s needs. NCCUSL also considersthe interstate implications and how likely an act is to be widely adopted, when categorizing an actas “uniform” or “model.” If it is seen as lessimportant or less likely that a particular act will be adopted widely, it will be labeled a “model” act.The reality is that state legislatures often modifyuniform as well as model acts, so that in the end,the difference between the two, if it exists at all,becomes a matter of degree.

The National Conference ofCommissioners on UniformState Laws

The American Law Institute, while best knownfor its well-respected Restatements of the commonlaw, also studies and drafts model laws, as does theAmerican Bar Association. The organization,however, whose primary purpose for more than100 years has been to draft and promote uniformlaws, is the NCCUSL. A uniform or model lawproffered by the NCCUSL has been through anarduous process of being scrutinized and voted

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

1 See its annual publication Suggested State Legislation,Council of State Governments, Lexington, Ky. (1946–present).The model acts in these volumes are usually taken from an actualstate statute already in effect. Each act is accompanied by a shortexplanatory statement; no extensive commentary is provided.

2 Of course, there are exceptions to this rule! The UniformBuilding Code, for example, is authored by the InternationalConference of Building Officials.



upon by lawyer members in all 50 states. TheNCCUSL is the result of a movement begun inthe late 1800s to “promote uniformity in the lawamong the several states on subjects as to whichuniformity is desirable and practicable.”3 The goalis to simplify “the legal life of businesses andindividuals by providing rules and procedures thatare consistent from state to state.”4

Each state has a delegation of uniform lawcommissioners who participate in the NCCUSL.It is up to each state to choose its representatives in the NCCUSL, and even to choose how manydelegates to send. NCCUSL’s only requirement isthat each state delegate be a member of a bar.Most states provide by statute the manner ofchoosing their uniform law commissioners; oftenthe appointment may be made by the governor.However, these positions are not seen as partisan,and many commissioners continue to serve whilegovernors come and go. Uniform lawcommissioners in some states may be legislators,but often they are not. They come from theprivate sector, academic sector, and governmentoffices. NCCUSL accomplishes much of its work with the use of working committees, whose responsibility it is to research and draftuniform/model acts in areas that anothercommittee has previously determined would bemost useful. Once a year, commissioners fromevery state meet and, acting as a giant committeeof the whole, they review, section by section, eachdraft uniform/model act. An act must withstandthis scrutiny for two annual conferences before itcan be approved by vote of the members andadopted as an NCCUSL uniform/model act. Itmust be no small feat for more than 300 lawyerdelegates to agree on statutory language! In theend, an act must be approved by a majority of thestates present (each state has one vote), and in noevent can this majority be fewer than 20 states. Ofcourse, adoption of an act by the NCCUSL stilldoes not give it the force and effect of lawanywhere. An act that has passed all of thesehurdles must still be presented to each statelegislature by its uniform law commissioners.

Becoming a Real Law

The exact method by which a uniform act is presented to a state legislature varies by state. In states such as Nevada, whose uniform lawcommissioners are by statute either legislators orlegislative staff, the commissioners naturally mayintroduce the proposed legislation themselves. In other states, nonlegislator uniform lawcommissioners must seek an introduction of theact by individual legislators. It is the duty of theuniform law commissioners to seek considerationof NCCUSL uniform laws by their legislatures,but they are not required to sponsor or lobby for the bill. After introduction of the bill, in many cases, it is the House or Senate judiciarycommittees that first consider a uniform law, and then the bill may be referred to the legislativecommittee that usually has charge of billsconcerning the relevant subject. The committeeswill usually hold hearings and take testimonyregarding the proposed legislation and then makerecommendations to the House or Senate aboutwhether the bill should pass. A uniform law issubject to editing and revisions by legislators justas any other bill is, and it is not uncommon for auniform law to be modified during the legislativeprocess, despite NCCUSL’s goal of uniformity. If the legislation passes, it will be codified alongwith the rest of the state laws.

Given that sometimes the changes a statelegislature makes to a uniform law may include achange to the original title, how does one find outthat the law is a uniform law? One method is tocheck the legislative history records of the bill. Ifthe bill is the result of a proposal from theNCCUSL, that fact will likely be mentioned inthe records. Another option is to start from theother side: check NCCUSL uniform acts by theappropriate subject of your law.

Resources

There are several good sources to consult tohelp you research uniform laws. NCCUSLpublishes an annual Handbook of the NationalConference of Commissioners on Uniform StateLaws and Proceedings of the Annual ConferenceMeeting. This book provides information on the uniform law commissioners from every stateand provides reports of committees and

3 NCCUSL Constitution, Art. I, Section 1.2.4 From the Web site of the National Conference of

Commissioners on Uniform State Laws: “About Us: Procedures,”<www.nccusl.org/nccusl/aboutus.asp> (August 30, 2001).



resolutions by which it adopted uniform laws that year, as well as the full text and commentaryaccompanying each of those uniform laws. It is a wonderful source of information, butunfortunately, in the 1980s, NCCUSL fell behindin its publication of these handbooks and is stilltrying to catch up. Currently there is about aseven-year time lag, the proceedings of the 1994conference being the most recent publication in2001. Fortunately, much of the informationcontained in the handbooks is available onNCCUSL’s Web site, <www.nccusl.org>, and on a Web site hosted for NCCUSL by theUniversity of Pennsylvania Law School:<www.law.upenn.edu/bll/ulc/ulc_frame.htm>. On these Web sites, researchers not only can findcurrent information on uniform and model laws,but also can review drafts of uniform and modellaws that are currently under discussion. One canlook up a particular act and see which states haveadopted it; one can also look up his or her ownstate and see which uniform acts have beenintroduced this year in the state legislature, andwhether or not they have been enacted.

West Group has also put together an extremelyuseful research tool for studying uniform laws: theUniform Laws Annotated ®, Master Edition, or theULA®. It does not include all of the laws thatNCCUSL has adopted, because it publishes auniform law only if it has been enacted in at leastone state. It does include some uniform lawspromulgated by other entities (e.g., ALI’s ModelPenal Code). The ULA provides comprehensivecoverage for the laws it publishes. Informationprovided includes the full text of the law itself andaccompanying history, amendments, andcommentary; information on which states haveadopted which acts (listed both by state andalphabetically); the statutory citations and effectivedate for each adopting state; and the full text andinformation about any additions or modificationseach state may have made; cross-references to lawreview articles and other relevant sources; and,happily, West Group provides case annotationsfrom the various states, so that if an act is too newin your jurisdiction to have been the subject ofcase law, you may find persuasive authority fromother jurisdictions that have enacted the uniformact. As per West Group’s usual style, this multi-

volume publication has convenient subjectindexing, tables, and regular pocket part or stand-alone softbound supplements to each volume. Thesubject index is especially useful if you are not sureof the title of the uniform act.

An additional source for uniform laws is lesscomprehensive but may be more likely to befound in your own law office: Martindale-Hubbellpublishes some uniform laws in the U.S. LawDigest volumes of the Martindale-Hubbell LawDirectory.

Borrowed Laws

Finally, if you are short of case law or legislativeintent on a statute in your own jurisdiction, don’tbe discouraged if you don’t find your statute to bepart of an official uniform or model law. Checkother states for similar statutes anyway. In reality,states borrow the language of statutes from eachother all the time. As the librarian for the IdahoState Legislature, I am frequently asked by myown legislators to obtain copies of other statestatutes on such-and-such a topic, and I am alsoasked by legislators from other states for copies ofparticular Idaho statutes. This is so common thatit is one of the main reasons an organization likethe National Conference of State Legislaturesexists: to act as a resource-sharing center for statelegislatures. There is no point in reinventing thewheel, as they say. When a state sees an actworking well in another state, it is helpful toborrow that language from the other state, bothfrom a drafting standpoint, and also to addstrength to the sponsor’s argument that this act orstatute has already been working well in X stateand would likely also work well in Y state.Therefore, if you have no mandatory caseauthority in your own jurisdiction, you may beable to find helpful legislative intent or judicialinterpretations from a state with an identical orsimilar statute, be it a uniform or model act ornot. If, however, your statute is a uniform ormodel act, especially from the NCCUSL, behappy in the knowledge that much of the researchcompilation has already been done and awaits youin the resources mentioned. Happy researching!

© 2002 Kristin Ford



WHY LAW REVIEWSTUDENTS WRITE POORLYBY LOUIS J. SIRICO JR.

Professor Louis Sirico is Director of Legal Writing atVillanova University School of Law in Villanova, Penn. He is co-author of Legal Writing and OtherLawyering Skills (3d ed. LexisNexis 1998); PersuasiveWriting for Lawyers and Other Legal Professionals(2d ed. LexisNexis 2001); and Legal Research (2d ed.Casenotes 2001). He is a member of the PerspectivesEditorial Board.

Teachable Moments for Teachers ... is a regular featureof Perspectives designed to give teachers an opportunityto describe a special moment of epiphany that changedtheir approach to presenting a particular topic to theirstudents. It is a companion to the Teachable Momentsfor Students column that provides quick and accessibleanswers to questions frequently asked by students andother researchers. Readers are invited to submit their own“teachable moments for teachers” to the editor of thecolumn: Louis J. Sirico Jr., Villanova University Schoolof Law, 299 N. Spring Mill Road, Villanova, PA19085-1682, phone: (610) 519-7071, fax: (610) 519-6282, e-mail: sirico @law.vill.edu.

Last fall, at the request of our law review, I conducted a three-hour program on legalwriting. In these presentations, I always discussmisunderstood and abused punctuation marks,like semicolons. As I explained when a writermight consider using a semicolon, a student raisedhis hand and asked this question: “Because wehave to put a footnote at the end of everysentence, should we use lots of semicolons so thatwe have longer sentences and need fewerfootnotes?”

It took me a second to gain my composure.Although the question gave me the opportunity torail against the way law reviews footnote to excess,it also gave me an insight into why writing in lawreviews is often so poor. Student editors mustperform their work within the constraints ofcurious rules that compel them to write badly.

As teachers, we may criticize the writtenproduct. However, unless we recognize the sourceof the problem, we cannot hope to deal with badwriting successfully. For example, if we advise astudent to write shorter sentences, the student may

politely acknowledge our advice with a nod.However, the student may be thinking, “Yes, but with shorter sentences, I will have to spendadditional time writing lengthy footnotes that I don’t want to write, and, I suspect, no one wantsto read.” Thus, despite our sound advice, thestudent most likely will continue to writesentences that could be shorter, crisper, and morecomprehensible.

With a little thought, I identified three othertraditional rules of law review writing thatcontribute to poor prose.

Overly Concise Writing. Law review editorscommonly advise their novice members that thelaw review can afford to publish only a certainnumber of pages per volume. Therefore, the advicegoes, keep your piece as short as possible bywriting as tersely as possible. The advice leads tosentences that are too compact for the reader tounderstand easily. Although we normallyencourage students to keep their sentences short,brevity is not a virtue when it reducescomprehensibility. For example, consider thissentence dealing with whether courts shouldinvalidate an ordinance that makes it illegal forgang members to loiter:

This criminal/noncriminal distinction isimportant in formulating an analytic modelby which to analyze the gang-memberstatus question.

In this sentence, the motivation for concisenessmay have led the writer to use two phrases that are awkward and difficult for the reader:“criminal/noncriminal distinction” and “gang-member status question.” A writer less concernedwith conciseness might have drafted a longer,more readable sentence:

In formulating an analytic model fordetermining whether to invalidate anordinance that criminalizes loitering by agang member, the court would find ithelpful to distinguish between status that iscriminal in nature and status that is not.

Alternatively, the writer might opt for a longerversion that employs more than one sentence:

In ruling on an ordinance that criminalizesloitering by gang members, a court mustconsider whether loitering is a status crime

“Although we

normally

encourage

students to

keep their

sentences

short, brevity

is not a virtue

when it reduces

comprehen-

sibility.”

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 . . .



that is unconstitutional. An initialconsideration is whether the status here is criminal or noncriminal in nature.

Not Using the First Person. Many law reviewsstill resist or refuse to permit the author to write in the first person. This excessive formalism canlead to stilted and awkward sentences.

Here is an example from my own experience. I once wrote an article arguing that a study of theShaker religion and its imagery could contributeto an understanding of religion that, in turn, couldmove legal analysis away from viewing religiousissues from a heavily male perspective. Forexample, one paragraph in my manuscript read asfollows:

I employ the Shaker experience to critiqueAmerican legal analysis. After presenting a brief history of the religion, I discuss two cases whose results seem to stem frommale dominated thinking. I then presentalternative approaches that reflect aninclusive analysis. Rather than engaging in abstract theological or legal argument, I indicate possible inclusive alternativesthrough a discussion of Shaker religiouspractices.

Unfortunately, the law review with which I published had a policy of maintaining completecontrol over editorial decisions on style. To mydisappointment, the editors eliminated my use ofthe first person. The published version of myparagraph reads this way:

The Shaker experience is here employed tocritique American legal analysis. After abrief history of the religion, two caseswhose results seem to stem from maledominated thinking are discussed. Thenalternative approaches are presented thatreflect an inclusive analysis. Rather thanengaging in abstract theological or legalargument, possible inclusive alternatives areindicated through a discussion of Shakerreligious practices.1

The revised version is grammatically correct,except for the dangling participle in the last

sentence. However, because it uses the passivevoice in every sentence and often places the passiveverb at the very end of the sentence, the paragraphis lifeless. I do not plan on publishing in thatjournal again.

Limiting Students in Expressing Opinions.Law reviews frequently instruct their staffers tolimit their opinions to the concluding few pages ofa student note or comment. As a result, the bulkof a student piece is a compilation of uninspiredinformation. Student work often reminds me ofthe observation of folklorist J. Frank Dobie: “Theaverage Ph.D. thesis is nothing but a transfer ofbones from one graveyard to another.”2

The rule on limiting opinions turns studentsinto drones and teaches them that their judgmentsare not particularly valuable. Although humility isa virtue, too much humility is not necessarily agood trait for lawyers. From the reader’s viewpoint,a thesis at the beginning of a piece gives the readera guide for understanding what follows. It alsoenergizes enervated prose.

In one of G. K. Chesterton’s stories, a characterproclaims, “It isn’t that they can’t see the solution.It is that they can’t see the problem.”3 As teachers,we sometimes see the superficial solutions, but donot acknowledge the underlying problems thatdiscourage our students from following our advice.With respect to law review students, to improvetheir writing, we need to address the defects thatinfect the law review culture.

© 2002 Louis J. Sirico Jr.

2 <www.brainyquote.com>.3 The Oxford Dictionary of 20th Century Quotations

(Elizabeth Knowles ed. 1999) (quoting The Scandal of FatherBrown (1935).

“The rule

on limiting

opinions turns

students into

drones and

teaches them

that their

judgments

are not

particularly

valuable.”

1 Louis J. Sirico Jr., Inclusive Law, Inclusive Religion, and theShakers, 34 J. Church & State 563, 564 (1992).



COMMON STUDENTCITATION ERRORSBY WAYNE SCHIESS

Wayne Schiess is a Legal Writing Instructor at theUniversity of Texas School of Law in Austin.

Introduction

This piece discusses the most common citationerrors law students (primarily first-year students)make, particularly when using case citations inpractitioner documents. I offer explanations forthe mistakes and possible solutions.

Why should students and their teachers careabout common citation errors? Three reasons:journals, seminar papers, and jobs. Journal work isan opportunity students have during the secondand third years, and they’ll need to be proficient atlegal citation. Plus, they’ll save themselves a lot oftime and headaches if they learn correct citationform during the first year. Students will also writeseminar papers during the second and third years.The professors will no doubt require correctcitation form in the papers, so getting the basicsdown now will help. And jobs. Most employerswill require new lawyers to cite sources correctly.Certainly, judges and their clerks will expectcorrect citations. Lawyers cannot afford to hurttheir clients’ cases because the citations are sloppy.

But poor citation form is a much morecommon mistake than I, as a legal writinginstructor, would like to believe. In fact, in asurvey of Texas appellate judges and their clerksconducted in 1994, many complained that toomany briefs use “citation form so wrong as to bedistracting.”1

In this piece I take a stab at solving citationproblems by identifying the most common ones.One note: I have based this piece on myexperience as a legal writing instructor—10 yearsof teaching legal research and writing at theUniversity of Texas School of Law. Because my

students use The Bluebook,2 my comments arebased primarily on it. But I am familiar with theALWD Citation Manual ,3 and I happen to thinkthat some of these errors would be reduced if weall adopted it, so I have included comments on itas well.

These are the most common mistakes I see:

Error one: Abbreviations.This is the most common error. The Bluebook

requires you to abbreviate certain words in certainsituations. But students often do not. Here aresome reasons:

Failure to understand the rules. I think it ishard for students to understand the rules thatgovern abbreviations. Following are the two mainrules briefly:

Rule Topic Effect10.2.1(c) Case names A few “always”

in textual abbreviations.sentences.

10.2.2 Case names The “always” in citations. abbreviations plus

those in table T.6.

(The ALWD Citation Manual rules onabbreviations—2.1(a) and 12.2(e), along withAppendixes 3, 4, and 5—are quite similar.)

One problem with these Bluebook abbreviationrules is terminology. Many students find thephrases “case names in textual sentences” and “case names in citations” confusing or unclear. Tohelp, I use these phrases:

Rule Topic Effect10.2.1 Case names Inserted citations.

in textual sentences.

10.2.2 Case names End-of-sentence in citations. citations.

Inserted citations do not require the Table T.6abbreviations, just the always-abbreviated &, Ass’n,Bros., Co., Corp., Inc., Ltd., and No. End-of-

“Why should

students

and their

teachers

care about

common

citation

errors?

Three

reasons:

journals,

seminar

papers,

and jobs.”

1 Pamela Stanton Baron & Douglas W. Alexander, Briefingto the Texas Courts of Appeals and the Texas Supreme Court—Avoiding Common Mistakes, 4th Annual Conf. on Techniques forHandling Civil Appeals in State and Federal Court (University ofTexas School of Law 1994).

2 The Bluebook: A Uniform System of Citation 57, 62(Columbia Law Review Ass’n et al. eds., 17th ed., 2000).

3 Assn. of Leg. Writing Dirs. & Darby Dickerson, ALWDCitation Manual: A Professional System of Citation (Aspen L. &Bus. 2000).



sentence citations require all the abbreviations inTable T.6.

I also encourage my students to use end-of-sentence citations. Inserted citations can bedistracting.4 So most of my students avoid insertedcitations and thus avoid remembering twoabbreviation rules. They just remember to alwaysabbreviate.

Difficulty in finding the list of abbreviations.Often, when students work on a document, theydo not have The Bluebook or the ALWD CitationManual at hand. “I’ll fix the citations later,” manythink. And even when the citation manual ishandy, it is often inconvenient to look up a wordin the tables or appendixes to see if it should beabbreviated.

I recommend that students make a copy of Bluebook table T.6 or ALWD Citation ManualAppendix 3 and keep it next to their computers. I do that. Even now, when nearly all theabbreviations are second nature to me, it is more convenient to glance at the copy instead of opening my citation manual and locating the table.

Error two: Not providing pinpoint citations.When you pinpoint, you show the exact page

from which your statement, information, orproposition was taken, like this:

No pinpoint: Pinpoint (highlighted):Nolan v. Graves Corp., Nolan v. Graves Corp.,10 S.W.3d 216 10 S.W.3d 216, 220(Tex. 1999). (Tex. 1999).

Nolan, Nolan,10 S.W.3d 216. 10 S.W.3d at 220.

Probably 80–90 percent of citations should havepinpoints. In other words, eight or nine times outof 10 when you cite a case, you should refer thereader to a specific page. Yet probably only half thecitations that need pinpoints have them.

The authors of the ALWD Citation Manualrecognize that pinpoints are important:

The importance of including pinpointreferences whenever possible cannot beoverstated. If you do not refer readers to

“Pinpoints are

valuable to

anyone who

reads and

checks on a

piece of legal

analysis.”

specific pages or other subdivisions wherethe referenced material appears, readers willbe frustrated. Moreover, if a judge or ajudicial law clerk cannot locate support foryour position, you may lose credibility withthe court, or the court may discount yourposition. Accordingly, always spend theextra time it takes to insert the pinpointreference.5

Pinpoints are valuable to anyone who reads andchecks on a piece of legal analysis. Careful readerssuch as judges and their clerks—and legal writinginstructors—appreciate pinpoint citations and canget highly annoyed when they are not used.Without pinpoints, the reader’s or checker’s job ismuch more difficult. In reality, students who donot provide pinpoints are shifting work fromthemselves to the reader.

Judges agree. Here is Justice Channell,writing for the California Court of Appeals,criticizing a lawyer for failing to use pinpoints:“We were not aided in our resolution of thisappeal by the appellants’ opening brief, which wasriddled with inaccurate and incomplete casecitations and which frequently referred to caseswithout reference to the pages on which the citedholdings appear.”6

Error three: Incorrect short forms.The mistake is usually this:

Not correct Correct Example 1: Example 2:Calandra, at 343. Calandra, 414 U.S.

at 343.7

Those who know The Bluebook know that youmust give the volume and reporter (414 U.S.) inthis type of short form.

As a former practitioner, I know that manypracticing lawyers use Example 1, which omits thevolume number and reporter name. I did. So domany students. Example 1 seems so logical and soeasy. But do not be confused by what seems easy.Usually, a citation rule is aimed at accuracy,thoroughness, and consistency—not at ease. So

5 ALWD Citation Manual, at 27.6 Howard v. Oakland Tribune, 245 Cal. Rptr. 449, 451 n.6

(Cal. App. 4th Dist. 1988).7 The Bluebook, at 15.

4 Bryan A. Garner, A Dictionary of Modern Legal Usage 155(2d ed., Oxford U. Press 1995).



Example 1 is not correct under The Bluebook orthe ALWD Citation Manual. Students should startnow to get in the habit of providing the volumeand reporter in short forms. (You can omit thevolume and reporter in id. forms—with a fewexceptions.)

Error four: Failure to cite where needed. Bluebook and ALWD Citation Manual rules, as

well as the conventions for attribution in legalanalysis, require writers to provide a citation afterevery sentence—or sometimes even after everyidea in a sentence.

This rule causes repetition, and studentsprobably resist it for that reason. Perhaps it seemsunnecessary to students—when they are discussingone case at a time—because the rule requires id.,id., id. But careful writers and experienced lawyersknow that the correct rule is to cite for allinformation, all propositions, and all statementsdrawn from the source.

For example, here are two typical paragraphsfrom a student-written memo. In these examples, I put the citations in boldface type:

Correct

Two important Texas cases have providedscenarios in which the server did not fulfillhis obligation to inform the recipient of thenature of the process and that service wasbeing attempted. In one, a language barrierfrustrated the server. Dosamantes v.Dosamantes, 500 S.W.2d 233, 237 (Tex.Civ. App.—Texarkana 1973, writ dism’dw.o.j.).There, the English-speaking processserver attempted to deliver papers to thedefendant, a Spanish speaker, at his home.Id. at 235. When the defendant refused thepapers, the server gave them to a maid, whohanded them back. Id. The server thenpushed them under the door and left. Id.Because delivery was attempted in English,the court held that service was invalid; thecase did not come within the exception thatapplies when the recipient evades or refusesservice. Id. at 237. The defendant, thecourt implied, was not informed of thenature of the process and that service wasbeing attempted. Id.

Not Correct

Two important Texas cases have providedscenarios in which the server did not fulfillhis obligation to inform the recipient of thenature of the process and that service wasbeing attempted. In one, a language barrierfrustrated the server. Dosamantes v.Dosamantes, 500 S.W.2d 233, 237 (Tex.Civ. App.—Texarkana 1973, writ dism’dw.o.j.). There, the English-speaking processserver attempted to deliver papers to thedefendant, a Spanish speaker, at his home.When the defendant refused the papers, theserver gave them to a maid, who handedthem back. The server then pushed themunder the door and left. Because deliverywas attempted in English, the court heldthat service was invalid; the case did notcome within the exception that applieswhen the recipient evades or refuses service.The defendant, the court implied, was notinformed of the nature of the process andthat service was being attempted. Id. at235, 237.

Correct

In the second important case, a person wasaware that papers might be served in thenear future, but the server did not informthe person at the time of the attempt. Tex.Indus., Inc. v. Sanchez, 521 S.W.2d 133,135 (Tex. Civ. App.—Dallas 1975, writref ’d n.r.e.). In Texas Industries, a sheriff ’sdeputy attempted to serve Henry Sanchez,a member of the Texas Legislature. Id. at135. The deputy had served Sanchezbefore, and he called Sanchez and told himhe “had some more papers” for him;Sanchez told him to take them to his office.Id. The deputy did not find Sanchez there,but later that day saw him at thecourthouse, and said to Sanchez, “I’m gladI saw you. You saved me a trip.” Id. Thedeputy then got the papers and broughtthem to the courthouse, where he foundSanchez in a press room, talking on thephone; two reporters were with him. Id. at136. The deputy placed the papers, in an

“[C]areful

writers and

experienced

lawyers know

that the

correct rule is

to cite for all

information, all

propositions,

and all

statements

drawn from

the source.”



unmarked envelope, on a desk whereSanchez was sitting, and left the roomwithout saying anything. Id.

Not Correct

In the second important case, a person wasaware that papers might be served in thenear future, but the server did not informthe person at the time of the attempt. Tex.Indus., Inc. v. Sanchez, 521 S.W.2d 133,135 (Tex. Civ. App.—Dallas 1975, writref ’d n.r.e.). In Texas Industries, a sheriff ’sdeputy attempted to serve Henry Sanchez,a member of the Texas Legislature. Thedeputy had served Sanchez before, and hecalled Sanchez and told him he “had somemore papers” for him; Sanchez told him totake them to his office. The deputy did notfind Sanchez there, but later that day sawhim at the courthouse, and said to Sanchez,“I’m glad I saw you. You saved me a trip.”The deputy then got the papers andbrought them to the courthouse, where hefound Sanchez in a press room, talking onthe phone; two reporters were with him.The deputy placed the papers, in anunmarked envelope, on a desk whereSanchez was sitting, and left the roomwithout saying anything. Id. at 135–36.

Legal readers have become accustomed toseeing citations for every statement or proposition;the reader gets used to a series of id. short forms.Of course, journals and seminar papers will requirethis meticulous citing. So the conscientiousstudent writer should learn to provide all thecitations.

Error five. Mimicking or shortcutting.This is not so much a citation mistake as it is

the cause of many citation mistakes. Too many lawstudents try to get through their assignmentswithout digging into The Bluebook. They use theQuick Reference inside the front and back covers,they ask a friend or a Bluebook hotshot, or theycopy citations out of opinions they are reading.(Yet the first rule of learning citations is that youshould not rely on citation form in judicialopinions.)

Those approaches will not take students veryfar. Why the hesitance to actually use the bookand look up the rules and apply them? Threereasons, I think:

Haste. A law student facing a huge task, such aswriting a brief—in the middle of a busysemester—will usually look for a shortcut. It canbe time-consuming and boring to look things upin The Bluebook. So some students try shortcuts,hoping to get their citations close enough.

Apathy. Many students do not care muchabout case citations. For some of my students, all my explanations and warnings will not sink in until they are on their first job. For some,citations are too ponderous, too dull to beinterested in. And for many, “close enough” isgood enough. That is too often the case outsidethe law school, too.

But learning correct citation form is likelearning anything tedious; once it becomesimportant, you are motivated to learn it. So I start with the expectation that students will learn citation correctly, and I stress its importance.I have found that if I treat it as important andteach it as important, most students will treat it as important.

Difficulty using The Bluebook. The Bluebookis not a plain-language masterpiece. Its rules canbe hard to understand and apply. Its sheer length is daunting; the coverage and depth are a bitoverwhelming at first. And one huge frustrationfor first-year law students is that the examples inthe text use law review typeface conventions, yetfirst-year students are writing practitionerdocuments.

There is not much the teacher of citation cando about these problems with The Bluebook. Ialready spend a lot of class time explaining thatstudents should not copy the typefaces from theexamples in the main text of The Bluebook.

But the ALWD Citation Manual offers greatrelief here. It has

• a more logical organization,• more and clearer examples, and• better explanations.

What’s even better, the ALWD CitationManual has abandoned different typefaces forpractitioner documents and scholarly documents.That is wonderful.

“[L]earning

correct

citation form

is like learning

anything

tedious; once

it becomes

important,

you are

motivated

to learn it.”



A final note of warning.

An easy-to-use citation manual such as theALWD Citation Manual can be a great helpbecause poor citation can get you in trouble.

For example, the authors of a 95-page briefwere sanctioned $750 for various citationproblems in Hurlbert v. Gordon, handed down bythe Washington Court of Appeals in 1992. Theproblems included citation to clerks’ papers thatwere nonexistent, typographical errors in citations,reference to 20–100 pages of material for a singlepoint (no pinpoints), lack of citation to the record,and case citations with numerous form errors.8

So students should dig into their citationmanuals. They should begin preparing now forjournal work, seminar papers, and jobs. Masteringcitation may never be rewarding in itself, butmastery will lead to success in law school and onthe job.

© 2002 Wayne Schiess

8 Hurlbert v. Gordon, 824 P.2d 1238, 1245 (Wash. App.1992).

“Mastering

citation may

never be

rewarding in

itself, but

mastery will

lead to

success in

law school

and on

the job.”



ORDER WHAT AREYOUR WORDS IN? HOW FOREIGNLANGUAGES CANHELP YOU TEACHTHE STRUCTURE OFLEGAL WRITINGBY SHEILA SIMON

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

“Why do they say Fanta naranja instead ofnaranja Fanta?” My 11-year-old daughter, Reilly,had learned to order orange soda while we were on a vacation in Spain, but she was puzzled bywhy she should call it Fanta orange instead oforange Fanta. I explained to her that differentlanguages build sentences in different orders.

“But wouldn’t they understand it if we saidnaranja Fanta?” I told her that they would, but itwould sound odd, just like it would sound odd tous if someone asked us for “soda orange” and “friesfrench.” The answer wasn’t very satisfying to Reilly,but I tried to assure her that once she got used toit, putting adjectives after nouns would sound justfine, and it would be the best way to make surepeople understand her.

Our conversation took place at the end of our vacation. Maybe because we were on a planepointed back toward the United States, theconnection to teaching seemed to be right therebefore me like the Fasten Seat Belt light—complete with the bing!

Bing!

I ask students to use a structure for theirwriting. Issue, rule, application, conclusion.Despite what the students think, this structuredoesn’t come from another planet, but maybe it’s from a different country. And just like mydaughter, I ask my students to give it a try andhang on until it feels natural. Even if it seems odd at first, it’s the best way to be understood.

OK, now I made the connection in my head.Would it be useful in other heads as well? I decided to give it a try. The more ways I canexplain the importance of structure the better. So I devised an in-class exercise that would showeveryone the importance of structure.

I Love My Wonderful WritingTeacher

At the beginning of our first class session onstructure, I asked each student to tell the classwhat language or languages other than English he or she can use. A handful of students in eachclass were fluent in another language. But mostsignificant, everyone had at least studied anotherlanguage. So everyone was familiar with thepossibilities of different word orders tocommunicate the same idea.

I asked one student who had some facility in each different language to go to the board. In my two classes we had speakers of at least fivedifferent languages. Expertise in the languagewasn’t important, just a general idea of how tocommunicate. I asked the students to write on the board in the language that they knew thefollowing sentence: “I love my wonderful writingteacher.” Any sentence with assorted parts ofspeech would work, but why miss an opportunity?I told the class they were just lucky I didn’t makethem all write it on the board 50 times. Once eachsentence was complete, I asked the students towrite a literal, word-for-word translation of theirsentences, with the translated English wordsappearing just on top of the words in the differentlanguage. The results looked like this:

SpanishI love to my marvelous teacher of writing.Yo amo a mi maravillosa maestra deescritura.

GermanI have like my wonderful professor (female)of writing.Ich habe gern meine wunderbareProfessorin den Schreiben.

Hebrew!wonderful she. Of-mine to-writing the-teacher love I

“I ask students

to use a

structure for

their writing.

Issue, rule,

application,

conclusion.”



With all of the sentences on the board I askedfor reassurance that the sentences made sense inthe languages in which they were written. I thenasked each student to read the sentence in thelanguage they used. Then I read the literaltranslations. The results were good silly fun.Hebrew was the best at making the point aboutwhat the audience expects since it is read fromright to left.

I explained to my students what they alreadyknew about languages—word order is significant.And using the literal translations, I showed how a word order that is not what we expect can makeit difficult, if not impossible, to understand themessage.

Bing, Bing, Bing!

Then I told them that the structure of theirlegal writing was significant to the legal reader inthe same way that word order is significant in alanguage. The legal reader expects a certainstructure. If the structure isn’t there the readermight be able to figure out the message, but it will take longer, and there is a risk that themessage will be missed entirely.

In my experience there is no one single tool I can give on the importance of structure thatworks for everyone. That’s why I give studentsseveral different tools. This foreign-languageexercise seems to be a vivid way of showing howstructure adds to ease of understanding. And it’s a tool that I can use again later with students whoare struggling with their structure.

Give it a try. You too for work it may ... I mean, it may work for you too.

© 2002 Sheila Simon

“I explained

to my students

what they

already

knew about

languages—

word order

is significant.”



THE DANGERS OFDEFAULTSBY STEPHEN V. ARMSTRONG AND TIMOTHY P. TERRELL

Stephen V. Armstrong is Director of Career Developmentat Wilmer, Cutler & Pickering, a law firm based inWashington, D.C. He is a former English professor andjournalist. Timothy P. Terrell is Professor of Law at EmoryUniversity in Atlanta, Ga., and former Director ofProfessional Development at the law firm of King &Spalding. Together, Armstrong and Terrell are the authorsof Thinking Like a Writer: A Lawyer’s Guide toEffective Writing and Editing (1992; second editionforthcoming in 2002 from the Practising Law Institute)and are regular contributors to the Writing Tips column.

The most difficult editing that any writer facestakes place deep within a document’s structure,down at a level to which many lawyers and mostlaw students never descend.

Ordinarily, when editors tackle a document’sorganization, they address one of two commonproblems—or, most often, they focus on both,one after the other. First, the organization may notbe fully logical, and it has to be rearranged into amore rigorous sequence. Second, the organizationmay be logical, but it is not yet truly coherentfrom the readers’ perspective: they have to worktoo hard to follow the logic and to grasp thedocument’s point and overall structure. To curethe second problem, an editor usually has to addbetter introductions, “road maps,” sub-headings,transitions, and other kinds of meta-information.

Sometimes, however, when editors focus on adocument’s organization, they should begin bytackling another problem, one that is harder tospot and to cure. This problem involves what wewill call “default” organizations. By the end of lawschool, everyone has used some organizingpatterns so often that they have become deeplyinternalized and, as a result, can be deployed onthe page with almost no effort—by default, as itwere. These organizations are perfectly logical:there is a clear order to the information. And,because they are so familiar to legal readers, theyare usually easy to follow. But their “logic” may beinconsistent with—or, at least, a distractionfrom—the legal or factual “story” the writer is

trying to tell. As a result, the strength of that story,and the clarity of themes from which it arises, arelost behind the façade of a plausible “logic.” Theeditor’s difficult task, then, is to spot theunderlying story or theme and bring it into theopen, by reorganizing the document (or section)to reflect it. Not that default organizations arealways wrong. But they are so easy to use, and socomforting to novices, that they fall onto the pagefar more often than they should—and, once onthe page, to the casual editor they can look justfine.

Although this problem arises in organizingboth law and facts, our topic here is writing aboutfacts. As we noted in a previous column onstorytelling (Winter 2001), facts are subject to onegreat “automatic pilot” structure: chronology. Inthat column, we dealt with one danger of thechronological default: it lets us avoid the hardorganizational work we should undertake to tell astory effectively. In this column, we deal with thedefault’s two other dangers. It tempts a writer toinclude too much detail and—as the previousparagraph forewarned—it can blur the clarity ofkey facts (or factual issues) that do not havechronology at their root. The first problem isrelatively easy to diagnose and cure. The second istrickier on both counts, and therefore deservesmore attention.

1. The Magnet Effect

Left to its own devices, as it often is whenwriters are lazy, chronology functions with thesame lack of discrimination as one of those giantjunkyard magnets: it picks up every fact thatcomes into range, important or trivial, relevant ordistracting. Once the first date or time falls ontothe page, every step in the sequence tumbles after.We won’t inflict an example on you: you will haveseen far too many already. Students and novicelawyers find this default particularly difficult toresist because it feels both conscientious and safe.Surely no one can blame them for being so carefulto tell the whole story, so attentive to the wholerecord.

As a cure, it’s not always enough just to slashaway the irrelevant facts. When writers begin toslash, they often discover that so much irrelevanceended up on the page because they hadn’t yetcome to a conclusion about what would be

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



relevant—and, as a result, they don’t know what tocut. The more fundamental cure, therefore, maybe to write a better introduction, one that forcesthe writer to focus on the themes or issues thatdetermine which facts are relevant and which canbe discarded.

2. The Who-Did-WhatSyndrome

When we write about facts, we generally havetwo tasks: to create a context for what happenedand to focus on the key facts relevant to the issues.In each task, at the substantive core of the facts,there may be a sequence—who did what when? Ifso, chronology will be the best match for thatunderlying substance. Sometimes, though, if youstep back from the welter of facts and search fortheir core, you find something other than asequence. If you are creating a context, forexample, the most important information mightbe a conglomerate’s corporate structure, or theecology of a marsh that was polluted by an oilspill. In the key facts, what matters most could bejust as varied: sometimes a sequence of actions butsometimes, for example, a description of a place orthe facts that establish a person’s character orcredibility. When sequence is not what mattersmost, chronology obscures the story and themethe facts should convey.

Besides chronology (“when”), the patterns into which facts most often fall are the standardcategories of journalism: who, what, where, and why.

• Who: The main character (the plaintiff,the defendant, the police, thecorporation’s board of directors, etc.) and other key characters, importantwitnesses, or sources of information (theexamining doctors, other experts, factwitnesses, etc.).

• What: The materials, documents, things,or issues (a company’s stock or assets orrecords, the key documents in atransaction, the defective product ormanufacturing process, the mental stateof the defendant, etc.).

• Where: The location or othergeographical context of an incident (the nature of a highway intersection, the neighborhood next to which theairport will be built, a deserted countryroad, etc.).

• Why: The explanation or motive forevents (wet roads, alcohol consumption,racial animus, greed, gravity, etc.).

This list is not meant to be exhaustive orprecise but, rather, suggestive. The goal is not toseize quickly on one pattern from the list, but toidentify the central theme (or themes) in your facts that tie them most directly to your legalanalysis or argument. The next step, of course, isto choose an organization that best reflects thattheme. In many cases, you may have to use morethan one organization, in sequence, to capture allthe relevant aspects of your facts.

Here is a simple example of the danger of thechronological default when chronology is not yourthematic “substance.”

Before:

On August 4, 1983, Jessica Hall wasinvolved in a motor vehicle accident at theintersection of routes 6 and 25 and the spurfrom exit 9 of I-84 in Newtown. Jessica wasa passenger in a pickup truck driven by hermother, Wendy Hall. Wendy Hall left exit9 of I-84 and proceeded eastbound on theexit spur to routes 6 and 25. At this point,routes 6 and 25 overlap into one road.When she approached the intersection ofthe spur and routes 6 and 25, sheattempted to turn left to go north on routes6 and 25. She testified that because hervision was obstructed by brush, she couldnot see traffic traveling south on routes 6and 25, so she inched her way onto thehighway to obtain a view. At that point, atractor trailer driven by John Jones wasdriving southbound on routes 6 and 25.Wendy Hall did not see the tractor traileruntil it was suddenly upon her vehicle.Jones attempted to avoid a collision bybraking and swerving to the left but was



unable to do so and struck Wendy Hall’struck, severely injuring Jessica Hall.

These facts are chronologically organized fromstart to finish. But the key factual issue is not who-did-what-when. It is a geographical question aboutthe sight lines at the intersection. Because thewriter is locked into this chronological default,however, he or she has no choice but to insert thekey geographical facts wherever the chronologypermits, blurring the emphasis they deserve.

The revision escapes this trap, while still usingchronology to capture the who-did-what:

After:

[FIRST, THE CONTEXTUAL FACTS]On August 4, 1983, Jessica Hall wasseverely injured when a tractor trailer drivenby John Jones collided with a pickup truckdriven by her mother, in which she was apassenger.

[NEXT, THE GEOGRAPHY] Theaccident took place at an intersection where,for drivers pulling onto the main road,vision is obscured until they are already inthe road. At that intersection, exit 9 of I-84meets routes 6 and 25 as they merge intoone road. According to the testimony ofWendy Hall, Jessica’s mother, the view fromthe exit spur is partially obstructed bybrush, so that drivers leaving the exit cannotsee traffic traveling south on Route 6.

[FINALLY, THE NARRATIVE] WendyHall left I-84 at exit 9. When sheapproached the intersection, she attemptedto turn left to go north on routes 6 and 25.She testified that, because she could not seetraffic traveling south on Route 6, sheinched her way onto the highway to obtaina view. She did not see Jones’ tractor traileruntil it was suddenly upon her vehicle.Jones attempted to avoid a collision bybraking and swerving to the left, but wasunable to do so and struck Wendy Hall’struck.

With facts this simple, the default was notparticularly destructive. With longer, more

complex facts, the default can cause much moredamage, as the next example shows.

This example comes from the fact section of anappellate judicial opinion. The appellant, Hann,was convicted of criminal trespass after taxiing hisairplane from a hangar to an airport runway. To getto the runway, he crossed part of the airport thatthe complaining witness, Hyde, leased and hadposted with “no trespassing” signs. Pieces of theairport had changed hands over the years in acomplicated sequence. What turns out to be atissue, however, is not the history of who ownedwhat when, but the language in a couple of deeds.The first version of the facts, as you can see just byglancing at the beginning of each paragraph, isrelentlessly chronological. As a result, it obscuresthe real issue so successfully that, as the writerrealized when he tried a revision, it even omitted a key provision in a controlling agreement.

Before:

The Aero-Valley Airport was constructedaround 1970 by Edna Gardner Whyte onthirty-four acres of her land. She laterbought more land northeast of the originaltract and made additional improvements,including extensions to the runway andtaxiways.

In 1980, Whyte sold to Gene Varner therunway and taxiways together with aportion of the land, including the portionwhere the transient area is located. Part ofthe purchase price was carried by a notefrom Varner to Whyte and secured by avendor’s lien and deed of trust. In the deedto Varner, Whyte reserved certain easementsand rights for access to the runway from herproperty located in the northeast corner ofthe airport. In 1982, Hyde-Way, Inc.,owned by Hyde, acquired all of Varner’sinterest and assumed the note owed byVarner to Whyte.

Sometime prior to October 19, 1983,Hyde’s corporation purchased 119 acreslocated west of the runway and referred toas the Northwest Development Addition.Misunderstandings and disputes arose



between Whyte and Hyde concerningobligations, rights, and other matterspertaining to the airport. On October 19,1983, a settlement agreement was enteredinto between Whyte and Hyde-Way, Inc.and Glen Hyde, individually, and by whichHyde agreed to convey to Whyte certainreal property located on the NorthwestDevelopment Addition. This conveyancewas apparently in payment of the balanceowed to Whyte under the 1980 note fromVarner. This conveyance also included tenhangars located on the land, one of whichwas being used by appellant as a tenant ofWhyte at the time of his arrest. Whyte wasthen still the owner of the hangar and toldthe appellant that he had access to therunway across the transient area under theterms of the settlement agreement betweenWhyte and Hyde.

Under that agreement, Whyte agreed toquit claim to Hyde all rights andreservations saved and excepted in her deed to Varner:

[E]xcept that Whyte shall have the right toconvey easements to persons who aretenants or heirs or assigns of land shepresently owns or will own in the futurewithin the confines of the Aero-ValleyAirport as it now exists, including theresidential lots in the Northeast corner ofsaid airport. Whyte agrees, however, that onthe sale of any of the hangars granted to herin this agreement or purchased by her in theNorthwest Development Addition she orher buyers will execute the Runway LicenseAgreement now required by Hyde frompurchasers in the Northwest DevelopmentAddition.

On February 5, 1987, Hyde sold whateverproperty he owned, including the transientarea, to a Nevada mining corporation. Atthe time appellant was arrested fortrespassing, on April 20, 1987, Hyde ownedonly a month-to-month tenancy under averbal lease from the mining company.

The testimony shows that there has been along history of disputes between Whyte andHyde over their airport transactions, andthat they had been in civil litigation for overtwo years before appellant was convicted inthis case. This litigation apparently did notinvolve the interpretation of the abovequoted language from the settlementagreement insofar as it was determinative ofappellant’s right to cross the transient areaon April 20, 1987. Appellant urges that asWhyte’s tenant he had access across thetransient area on that date by virtue of theeasement rights which Whyte retained inher agreement with Varner and which shewas authorized to convey under thesettlement agreement with Hyde.

In the revision, many of the irrelevant detailshave been discarded. But the more importantchange is structural: the chronology has beenseparated out from the “what” of the keydocuments, with each given its own section. This separate focus on separate topics not onlyhighlights the second one, but ties it more directly to the legal discussion that follows. Afterreading the revised facts, we now expect theanalysis to hinge on those documents, not on the chronology of ownership.

After:

The Aero-Valley Airport was constructedaround 1970 by Edna Gardner Whyte onher land. Over the years, parts of it changedhands several times. Throughout thesechanges, Whyte retained part of theproperty, some of which she leased totenants such as Hann.

History of the Airport’s Ownership

In 1980, Whyte sold to Gene Varner therunway and taxiways together with aportion of the land, including the portionon which appellant allegedly trespassed. Partof the purchase price was carried by a notefrom Varner to Whyte.

In 1982, all of Varner’s interest was acquiredby Hyde-Way, Inc., owned by Hyde.



Hyde-Way also assumed the note.Sometime thereafter, it purchased more land located west of the runway and referredto as the Northwest Development Addition.

On October 19, 1983, Hyde-Way, Inc., and Hyde individually entered into anagreement with Whyte in which, amongother matters, Hyde agreed to convey toWhyte certain real property in theNorthwest Development Addition, inpayment of the balance owed under the1980 note. This conveyance included tenhangars, one of which was the hangarappellant was renting at the time of hisarrest.

On February 5, 1987, several weeks beforethe arrest, Hyde sold his airport property to a Nevada mining corporation. On theday of the arrest, he owned only amonth-to-month tenancy under an orallease from the mining company.

The testimony shows that there has been along history of disputes between Whyte andHyde. The 1983 agreement between themwas intended to settle these disputes, butthey had been in civil litigation for over twoyears before appellant was convicted in thiscase. The litigation, however, did notaddress the issues raised by this appeal.

The Key Agreements

Appellant relies on the terms of Whyte’s1980 sale of the airport to Varner, Hyde’spredecessor, and of Whyte’s 1983 agreementwith Hyde. Based on those agreements,appellant argues, there is sufficient reason tobelieve that he had effective consent to enterHyde’s property so that the trial court couldnot have found him guilty beyond areasonable doubt.

In 1980, when Whyte sold part of her landto Varner, the deed reserved to Whytecertain easements and rights for access tothe runway from her property. In relevantpart, the deed states:

[NOTE: In this form of organization, itbecomes clearer that a crucial item—therelevant language from the 1980 deed—is missing.]

Under Whyte’s 1983 agreement with Hyde,Whyte agreed to quit claim to Hyde allrights and reservations saved and exceptedin her deed to Varner, with the followingexceptions:

... Whyte shall have the right to conveyeasements to persons who are tenants orheirs or assigns of land she presently ownsor will own in the future within the confinesof the Aero-Valley Airport as it now exists,including the residential lots in theNortheast corner of said airport.

As both examples demonstrate, and as wementioned earlier, the trick to organizing factssuccessfully is often to rely on more than oneorganizing pattern. (And, of course, to provideadequate introductions before the details.) Most of the time, you have a story to tell, and thereforeneed to use some chronology. Some of the time,however, you will also want to make the facts doother work, for which another form oforganization may be best. In situations that call fortwo or more forms of organization, their sequencecan be important. In the facts about the accident,for example, if you represent the Halls youprobably want the geography before thechronology, because readers will respond to thestory more sympathetically if they have firstfocused on the messy state of the intersection. Ifyou represent the other side, you might make theopposite choice, because Hall’s description of theintersection may then sound more like an excusefor bad driving.

Here is an example of a similar choice beingmade by Justice Robert Jackson, in a famous caseabout mens rea. Where most writers would havestarted with a chronological narrative, he insteaddescribes a place, and then things in that place.When he turns to the who-did-what-whenchronology, he minimizes its chronological aspectby emphasizing “who” and “why”—character andmotive—not “when.” The only date is buried inthe third paragraph, and facts that paint an upright



character and blameless motives receive far moreemphasis.

These choices are artful. Once we have readthrough the facts, by the time Jackson gets to thedefendant’s arrest we are primed to agree with thelegal conclusion: There was no mens rea, andhence no crime.

On a large tract of uninhabited and untilledland in a wooded and sparsely populatedarea of Michigan, the Governmentestablished a practice bombing range overwhich the Air Force dropped simulatedbombs at ground targets. These bombsconsisted of a metal cylinder about fortyinches long and eight inches across, filledwith sand and enough black powder tocause a smoke puff by which the strikecould be located. At various places aboutthe range signs read “Danger—Keep Out—Bombing Range.” Nevertheless, the rangewas known as good deer country and wasextensively hunted.

Spent bomb casings were cleared from the targets and thrown into piles “so thatthey will be out of the way.” They were not stacked or piled in any order but were dumped in heaps, some of which had been accumulating for four years orupwards, were exposed to the weather and rusting away.

Morissette, in December of 1948, wenthunting in this area but did not get a deer.He thought to meet expenses of the trip bysalvaging some of these casings. He loadedthree tons of them on his truck and tookthem to a nearby farm, where they wereflattened by driving a tractor over them.After expending this labor and truckingthem to market in Flint, he realized $84.

Morissette, by occupation, is a fruit standoperator in summer and a trucker and scrapiron collector in winter. An honorablydischarged veteran of World War II, heenjoys a good name among his neighborsand has had no blemish on his record more

disreputable than a conviction for recklessdriving.

The loading, crushing and transporting of these casings were all in broad daylight,in full view of passers-by, without theslightest effort at concealment. When aninvestigation was started, Morissettevoluntarily, promptly and candidly told the whole story to the authorities, sayingthat he had no intention of stealing butthought the property was abandoned,unwanted and considered of no value to the Government. He was indicted,however, on the charge that he “didunlawfully, willfully and knowingly stealand convert” property of the United Statesof the value of $84, in violation of 18U.S.C. § 641, which provides that“whoever embezzles, steals, purloins, orknowingly converts” government propertyis punishable by fine and imprisonment.Morissette was convicted and sentenced toimprisonment for two months or to pay afine of $200. The Court of Appealsaffirmed, one judge dissenting.

As impressive as this example of how tomarshal is, we suspected that its effectivenessmight have had less to do with Justice Jackson’sskill than with the efforts of Morissette’s lawyer in his brief to the Supreme Court. So we went tothe records to read it. What we found is worthdiscovering on your own. The brief begins with asection labeled, with wonderful irony, “SummaryStatement of the Facts.” In our programs onpersuasive writing, we include in the materials thefirst six, single-spaced pages of this remarkablesection, which contains almost no paragraphbreaks. Justice Jackson’s skill as a legal writer—distilling from this disastrous mush the clean,compelling story he tells by escaping from thechronological default—is even more remarkablethan we had thought.

© 2002 Stephen V. Armstrong and Timothy P. Terrell



FOUR POINTERS TOEFFECTIVE USE OFPOWERPOINT IN TEACHINGBY ANGELA CAPUTO

Angela Caputo is a Legal Practice Skills Instructor atSuffolk University Law School in Boston, Mass.

Technology for Teaching ... is a regular feature ofPerspectives, designed to introduce and describe the waysin which teachers of legal research and writing are usingtechnology to enhance their teaching. Through Volume 9,this column was edited by Christopher Simoni, AssociateDean for Library & Information Services and Professor of Law, Northwestern University School of Law. Readersare invited to submit their own “technological solutions”to Mary A. Hotchkiss, Perspectives Editor, Universityof Washington School of Law, 1100 N.E. CampusParkway, Seattle, WA 98105-6617, phone: (206) 616-9333; fax: (206) 616-3480, e-mail: [email protected].

Introduction

This article concerns the effective use ofPowerPoint1 as a technological enhancement toteaching in the modern law school classroom. I have taught in the Legal Practice Skills Program(LPS)2 at Suffolk University Law School since theopening of our new high-tech facility in 1999.During that time I have used PowerPointextensively and I have learned several ways toeffectively use this technology in legal pedagogy.

When used effectively, PowerPoint offersbenefits to both students and faculty. As modernlaw teachers, we are faced with the challenge ofreaching a group of individuals who areaccustomed to getting their information frommultiple sources, such as a combination oftelevision, newspapers, radio, and the Internet.Moreover, although law students tend to be afocused and committed group, they are also acaptive audience required to take certain coursesregardless of interest. The strength of PowerPointlies in its ability to visually convey information,

in both text and images, and reach students with a variety of learning styles. Also, the use ofPowerPoint requires a teacher to consider materialsin a different way, to take a fresh new approach tothe material, and to better organize and condensematerials.

This article is not a technical “how to” guide tocreating PowerPoint presentations. PowerPoint isuser-friendly and easy to learn through basicinstruction and experimentation.3 The purpose ofthis article is to offer some guidance, beyond thetechnical composition of a presentation, for theeffective use of presentation technology in legalpedagogy. This guidance is offered in four main“pointers.” First, PowerPoint should only be usedwith a specific purpose. Second, teachers shouldfocus on keeping the atmosphere in the classroomconducive to learning because the use oftechnology can change the learning environment.Third, teachers should meaningfully limit thecontent of a PowerPoint presentation. And,fourth, teachers should carefully maintain contextwhen using PowerPoint to enhance teaching.

1. Have a Specific Purpose

PowerPoint should be used only for a specificpurpose. A teacher should consider the content ofeach class to determine whether there is a reason touse PowerPoint for that session. The following areexamples of four good reasons to use PowerPointas a technological teaching aid.

a. Incorporate imagesPowerPoint is useful when images will aid

student understanding. For example, to addressthe difficulty of teaching legal research outside ofthe library setting, at Suffolk we “bring the libraryinto the classroom” using PowerPoint. We use

“The strength

of PowerPoint

lies in its

ability to

visually

convey

information,

in both text

and images,

and reach

students

with a variety

of learning

styles.”

1 This article focuses on PowerPoint because it is thepresentation technology with which I am most familiar, but thesuggestions made in this article apply to other comparablepresentation software.

2 LPS is Suffolk’s legal writing, reasoning, and research course.

3 Many technologies can be used in most law schoolclassrooms by bringing in the necessary equipment. SuffolkUniversity Law School’s high-tech facilities ease the use oftechnological enhancements such as PowerPoint. All of theclassrooms have identical capabilities, including Pentium-basedPCs, projectors, screens, digital document cameras, and state-of-the-art audio systems. By using a color LCD (liquid crystaldisplay) touch-control panel based at the front of each classroom,teachers can control the classroom environment by doing suchthings as lowering the shades and the lighting, as well as controlthe classroom equipment, by operating the projectors and thecameras, for example.

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



“The use of

color visuals

often increases

comprehen-

sion and

retention.”

digital images of library resources,4 in conjunctionwith corresponding handouts, to take students ona step-by-step trip through the research process.

For example, we use PowerPoint to teachstudents how to Shepardize®. Shepardizing™ is ahard process to explain without using multiplebooks as illustration, and students have difficultyunderstanding the concept without visualizing thesteps. A PowerPoint presentation with digitalimages of the resource,5 accompanied by ahandout that details the steps to Shepardizing,helps students to better grasp the process.

PowerPoint eases the transmission of the visualinformation as it offers a convenient way toincorporate images into a lecture.

This technology-enhanced method of teachinglegal research has some advantages. Teachingresearch to students in the library, for example, iscomplicated by the logistics of managing largenumbers of students and the disruption to otherlibrary patrons. Carrying library resources into theclassroom is cumbersome at best, and there arenot enough copies of specific resources to teachthe large number of first-year students.Photocopied images cannot show the entireresource. PowerPoint images can allow students tosee the resource in its full context.

b. Use tools to focus attentionAny image, document, or text included in a

presentation can be annotated to focus all studentson the same thing at the same time. For example,in our sessions in which we talk about the research

process, we include digital images of maps of thelibrary in PowerPoint presentations so that thestudents understand the layout of the library whilestill sitting in the classroom. PowerPoint offerstools to annotate the images to focus attention ona particular area in the image. For example, ateacher can “draw” a circle around a point in adigitized document or he or she can draw anarrow or a line to an area of a diagram.

This annotation of images is not limited topictures or diagrams. Any document can bescanned into digital form, included in aPowerPoint slide, and annotated by drawingshapes around important information.

Another teaching tool made easier byPowerPoint is the use of color, which cancommunicate both ideas and meanings. The useof color visuals often increases comprehension andretention. To emphasize certain points, a teachershould use colored text to diagram parts ofsentences or paragraphs or to identify parts of aparadigm used to convey legal analysis. Whilecreating meaningful PowerPoint slides requiressignificant preparation time before class, it cansave valuable in-class time by reducing the amountof writing on the board during class.

c. Facilitate use of multimediaPowerPoint can facilitate the use of

multimedia, such as the Internet, video clips, andsound files. A hyperlink to a relevant Web sitewithin a PowerPoint slide permits a teacher tojump online and explore the relevant sourcewithout disrupting the flow of the class. For classeson research methods, I have included hyperlinksto Web-based research guides created by theSuffolk law librarians.6 The value of these guides is

4 With help from Suffolk’s library staff and their digitalcamera, we obtained digital images of specific resources and savedthem on Suffolk’s server for access by the LPS department.

5 Images incorporated into our PowerPoint slides includeimages of the full set of the relevant Shepard’s® volumes and of therelevant books being pulled off the shelves. 6 The Web address of these research guides is

<www.law.suffolk.edu/library/pubs/pubs.html>.



reinforced by their exploration during theclassroom lecture. Video clips and sound files cansimilarly be included in a PowerPoint presentationfor easy access.

d. Outline complex lecturesPowerPoint is a helpful tool for outlining

complex lectures. Students can more easily followalong when a visual aid conveying the organizationof the lecture accompanies the discussion. This“roadmap” helps students maintain context andtake notes more easily.

2. Consider Atmosphere

When using PowerPoint, a teacher should keepthe atmosphere in the classroom conducive tolearning by taking steps to avoid discouraginginteractivity.

a. LightingThe goal is to keep the room as bright as

possible while still allowing the students to clearlysee the screen on which the presentation isprojected. The most obvious reason for brightlighting is that students need to take notes. A lessobvious, but perhaps more important, reason tokeep the room brightly lit is that brighter lightingwill stimulate interaction and keep the studentsengaged. A dimly lit room encourages passiveobservation, similar to watching a movie in atheater where the learned response is to merelyobserve. To keep students engaged, a teachershould maintain eye contact with them. Dimlighting discourages eye contact and prevents theteacher from getting valuable feedback fromobserving facial expressions and gauging thecomprehension of the class.

Teachers should take advantage of all lightingin the classroom. One tip is to use natural lightingalong with artificial lighting, taking care not tocompromise slide clarity.7 Be sure to takeadvantage of ambient light by choosing aPowerPoint background color scheme or abackground template that is light in color. Manytemplates that come as preset backgrounds forpresentations are composed of darker colors thatrestrict ambient light.8 Dark backgrounds darken

the front of the room and can disconnect theteacher from the class—this removal is perceivedby the students. Ambient light stimulates both theteacher’s connection with the students and thestudents’ involvement in the class by keeping thefront of the room brightly lit without interferingwith slide clarity.

Consider toggling between full class lightingand presentation lighting. During times when thestudents do not need to see the slide, a teacher can“blank out”9 the presentation and bring the classto full lighting, and then switch back topresentation lighting to show a slide that may helpprompt discussion or thought.

b. Consider color psychologyTeachers should consider the effect of color

psychology10 on the atmosphere in the classroomwhen using PowerPoint. As certain colors areknown to suggest certain moods, a teacher shouldconsciously choose color. Red connotes danger orwarning. Blue is calming. Green is known tostimulate interaction and suggests encouragement.Color can be introduced in a PowerPointpresentation in the background of slides, in text,in charts, and in accents.

c. Avoid glitzWhen using PowerPoint, a teacher should have

students focus on what is being said and not onhow it is being said. Do not lose the message inthe technology. PowerPoint has many specialeffects, such as a variety of creative ways totransition between slides and between each pointon an individual slide, and a myriad of sounds,including chimes, bells, and whistles, toaccompany the transitions. A teacher can cause hisor her words to come spiraling from the center ofthe slide, and make the students dizzy in theprocess. Each point can literally “shoot” onto thescreen with the sound of a laser. These effects canbe distracting. Moreover, PowerPoint effects whenoverused will be perceived by students as flash or

“Do not lose

the message

in the

technology.”

7 This works well when the teacher has a dimmer option inthe classroom.

8 Darker templates also tend to contain designs that distractstudents and limit the usable area of the slide.

9 Pressing the “B” key on the keyboard during aPowerPoint presentation will “blank out” the screen and pressingthe “B” key again will “bring it back.”

10 Many books have been written on the effect of colorpsychology in general. For an article addressing the impact of colorin the use of PowerPoint, see Gary Guthrie and Ian T. Ramsey,Pushing PowerPoint Above Idle: Speech Is Abstract; Pictures AreReal, 16 No. 10 Legal Tech News. 1 (1999).



“Think of the

slides as a

talking outline

that helps

students

follow along,

take good

notes, think

about what

is being

said, and

participate.”

gimmicks. Like the use of PowerPoint itself, theeffects should be used only if they serve a purpose.When using these effects, consider how viewersprocess information. For instance, the Englishlanguage is read from left to right, so opt fortransitions that cause a point to “fly” from left toright, or to simply “appear,” as these movementsare easier to follow than a spiral or a flash.

3. Limit Content

Teachers should meaningfully limit the contentof their presentations. When considering content,first-time users of PowerPoint often fall into thetrap of including as much detail as possible.Giving too much detail, however, may becounterproductive. My first use of PowerPoint wasto digitize and project my lecture notes to mystudents. Instead of teaching, I found myselfreading aloud from the slides, and my studentswould feverishly write down every piece ofdisplayed text. I quickly noticed that during thoseclasses my students were too focused on notetaking. My solution was to distribute a printedversion of the slides to supplement the classsession. I then found that students did not takemany notes, presumably because they had theinformation in writing before them. I perceivedthat this lack of note taking caused them toprocess less in class. The goal is to hit the happymedium that will best help the student and theteacher. Each slide should contain only one keypoint. Think of the slides as a talking outline thathelps students follow along, take good notes, thinkabout what is being said, and participate. Thefollowing are suggestions to accomplishmeaningful limitation of content:

a. Less is more A few well-chosen words can speak volumes.

Experts suggest limiting slides to 40 words. Whenthere is an overabundance of information, studentswill be unable to see the primary points. They willbe unable to distinguish which words areimportant, since text-heavy slides lack the signals,visual or otherwise, to distinguish the key points.Students will attempt to write down everythingthat they see because they fear that they mayotherwise miss something. As a result, they do notlisten and they miss the points made in the

narrative. Use only key words to avoid thisoutcome.

Also, including too much detail on one slidewill result in a small text font. Fonts should bekept large for ease of reading. Sit in the back of theclassroom and run the presentation: are the wordshard to read? If so, perhaps some detail should beomitted from the slide, or perhaps the slide shouldbe reorganized into two slides, as there may bemultiple points on the one slide.

b. Be concise Each point should be kept as concise as

possible. Choose short words over long words. Use words, not phrases or sentences. Omitpronouns, articles, and repetitive words. A goodrule of thumb to follow is the 6 x 6 rule.11 Use no more than six words per line and six lines perslide. This rule forces a teacher to organize andcondense the information.

c. Use notes pages for teaching notesPowerPoint has a feature that allows a teacher

to annotate the presentation in a “notes section” of each slide. These annotations, which are notviewed by the students, permit the teacher topreserve lecture notes alongside the slide text andprint them for use during the presentation.

d. Make it interactiveSlides are a good place to include written

questions. Seeing the questions in text may helpsome students to process information more easily.Questions on the slides also reinforce past lecturesand make students think about the context of the topic of that class in relationship to pastsessions. This reinforcement builds students’confidence in their acquired knowledge andcreates an environment that encourages them to consider and absorb new concepts.

4. Maintain Context

A teacher should maintain context when usingPowerPoint as a teaching enhancement. Lawstudents are notorious for not seeing the forest forthe trees—if not used with care, each PowerPointslide can be like one tree. The key is to keep

11 The name of the rule was coined by a faculty member at Mount Mercy College in Cedar Rapids, Iowa, in an Internet article titled “Top 10 PowerPoint Tips”<www.mtmercy.edu/comp/toptenp.htm>.



students aware of where the particular conceptbeing discussed fits into the larger context.

a. OutlineTo maintain context, a teacher should outline

the class discussion. Use an introduction slide tooutline the large points and break those pointsdown in a way that is obvious to the students.Refresh that outline format as the class progresses.Outlining with numbers works particularly well inhelping students remember where the individualpoint fits into the bigger picture.

b. Transition between ideasTo maintain context, carefully develop the

transitions between ideas and not slides. The slidetechnology can lead to compartmentalization ofideas. Keep good notes of the next topic and howit fits into the big picture,12 and introduce the nextidea, and its placement in the overall topic, whilemoving to the next slide. Although each slideshould cover one point, that point should clearlyfit into a bigger picture; the ideas presented oneach slide should be clearly connected to oneanother.

Conclusion

As a teaching tool, PowerPoint technology canbe phenomenal to help teachers illustrate points ina compelling way. Visual aids can improveclassroom interest levels and retention ofinformation. Effective use of PowerPoint andrelated technologies, however, requires teachers tocarefully analyze the material to be presented andthe various techniques for delivering that material.The successful integration of technology inteaching always places purpose and content abovethe bells and whistles.

© 2002 Angela Caputo

“The successful

integration of

technology in

teaching

always places

purpose and

content above

the bells and

whistles.”

12 A good suggestion is to make note of what is “next” inthe notes section of the previous slide.



This is a column of reader-prepared answers offered inresponse to a specific question posed by Perspectives.Readers are invited not only to submit “answers” but alsoto submit “questions” they would like to see addressed infuture issues.

OUR QUESTION

We asked law librarians and legal researchteachers to identify difficult subject areas of the lawand difficult research tools to teach. Administrativelaw, and more specifically the combination of theFederal Register and Code of Federal Regulations,was the overwhelming winner. Recalling the recent“mini teach-in” one of us did for two junior stafferson this very subject, we agreed. As a follow-up, weasked readers to submit tips or lesson plans fortraining lawyers, law students, and clerks inregulatory research.

YOUR ANSWERS

Federal and State Regulatory ResearchAdministrative law is the body of law created

by administrative agencies in the form of rules,regulations, procedures, orders, and decisions.Researchers are challenged by the contrast infeatures that are available in regulatorypublications. Official government publicationssuch as the Federal Register and Code of FederalRegulations (CFR) provide minimal indexing andlimited readers aids. Leah Chanin, librarian at theAllen Mercer McDaniel Law Library at HowardUniversity in Washington, D.C., notes that “theindexes or lack thereof in CFR and Federal Registercause many problems” whether in locating orupdating federal regulations. Librarians inacademic, firm, county, state, and court settingshave developed a variety of checklists and researchguides to teach researchers how to update the CFR.Ruth Balkin, of Balkin Library & InformationServices in Rochester, N.Y., responded to herclients’ needs by creating “a pathfinder, describingand illustrating every step to take in updating theCFR via the Federal Register.” A recent Perspectives“Teachable Moment” column focused on updatingin print and online; see How Do You Update theCode of Federal Regulations? by Lydia Potthoff, 5 Perspectives: Teaching Legal Res. and Writing28–29 (1996).

Commercial publications such as subject-specific looseleaf services provide extensiveindexing and a multitude of research aids. Theseservices tend to cover highly regulated areas of lawsuch as tax, labor, securities, and bankruptcy andintegrate by topic or code section the relevantstatutes, regulations, court cases, administrativeadjudications, proposed legislation, and pendingregulations. While the complexity of these servicesmay initially overwhelm the novice researcher, thedepth and breadth of this “one-stop shopping”approach is ultimately favored for regulatoryresearch.

Michael Chiorazzi, director of the University of Arizona College of Law Library in Tucson, has a novel strategy for teaching regulatoryresearch. “I start the administrative law section ofmy advanced legal research class with a showing ofa 50-minute video, ‘The Regulators,’ hosted byE.G. Marshall. While somewhat dated, it gives agreat look at the importance of federal regulationsand how they are created. The video focuses onEPA [Environmental Protection Agency] efforts tocreate clean-air regulations to limit pollution in thenational parks. I’ve used it for years; studentreaction remains positive; and it is a nice breakfrom lecture or hands-on research classes.”

Mitch Fontenot, of the University of ColoradoLaw Library in Boulder, provided a researchprotocol for state administrative research. WhenMitch is helping a patron with a regulatoryquestion, he prefaces his assistance with the adagethat “state regulations run the gamut of average to worse.” He notes that state regulatory researchhas some unique challenges—particularly in thearea of researching the development of specificregulations. Mitch recommends a multiprongedapproach:

1. Examine the table of contents and subjectindex of the regulations themselves.

2. Check your respective state government Web site to see if the regulations and stateregisters are included. Check for accuracyand currentness, noting relevant disclaimers.

3. Call the agency involved directly and hopefor a competent person on the other end. Ifnot, call back again and try someone else.

4. Check LexisNexis or Westlaw® with the sameproviso as in #2 above.

O U R Q U E S T I O N — Y O U R A N S W E R S



5. Check BNA’s Directory of StateAdministrative Codes and Registers. Althoughthis title is out of print, the directory layoutprovides a useful framework.

6. Check William H. Manz’s Guide to StateLegislative and Administrative Materials,2000 ed. This is an excellent resource thatgives useful context to state-specific research.

7. Consult a subject-oriented looseleaf,CD-ROM, or Web site that reproduces theregulations on a particular topic such asBNA’s Environment & Safety Library forstate environment regulations.

Other Difficult Areas toTeach—Runners-Up

1. How Laws Are PassedDave Rogers, of Sidley Austin Brown & Wood

in Chicago, Ill., told us that his overall concern islawyers who don’t know how laws are passed. He thinks that U.S. Code Congressional andAdministrative News® (USCCAN) is a great initialtool and that its editorial enhancements help a lot. Unfortunately, in an era in which youngerattorneys expect to be able to type 20 charactersand have instant answers, their kind of onlineresearch does not translate well when trying todiscern a provision of the law passed in 1968 withthe Civil Rights Act. Schoolhouse Rock’s “I’m Justa Bill” goes a long distance, but attempts are notsuccessful to get a person to understand that whenthe House bill is passed in lieu of the Senate bill,the place to start is the House and Conferencereports. Results are glazed-over eyes, notcomprehension. When there is impending panicbecause a client will be calling within the hour [foran answer], this just isn’t a teachable moment forthe law librarian.

2. BNA’s Labor Relations ReporterCindy Beck Weller, of Cooper, White &

Cooper LLP in San Francisco, Calif., told us thatshe has the hardest time teaching new laborassociates all the nuances to this title. “BNA has avideo, which is old [and] does an OK job, but ittakes quite a bit of time to get folks comfortablewith the print version.” Shannon Wilson, ofOgletree, Deakins, Nash, Smoak and Stewart,P.C., in Greenville, S.C., said, “I have the most

difficulty teaching the BNA Labor RelationsReporter because there are so many componentsand so many places to check to be thorough. Ourhardbounds are shelved close—but not right nextto the looseleaf part of the set. Many researchersdo not even realize they are related and only get tothe hardbound through a cite from a case or lawreview. Associates rarely have the time andpatience for training when the question comes up.They just want a quick answer so they can getback to the partner/client.”

3. Miller’s Standard Insurance Policies AnnotatedNanna K. Frye, librarian at the California

Court of Appeal in San Diego, told us that this is a difficult resource to teach attorneys how touse. She finds the physical setup to be difficult, as it is housed in binders that don’t stay open to a particular page. The print is also extremely small.As most of us are occasional users, it is not easy tofigure out how to find the appropriate policy andhow to Shepardize® a policy’s clause.

Our thanks to everyone who responded to thequestions we posed.

Judy MeadowsState Law Librarian of MontanaJustice Building215 N. SandersHelena, MT 59620-3004Phone: (406) 444-3660E-mail: [email protected]

Kay ToddSenior Legal ResearcherPaul Hastings Janofsky & Walker LLP600 Peachtree St., N.E., Suite 2400Atlanta, GA 30308Phone: (404) 815-2141E-mail: [email protected]

© 2002 Judy Meadows and Kay Todd



COMPILED BY DONALD J. DUNN

Donald J. Dunn is a Law Librarian and Professor of Law at Western New England College in Springfield,Mass. He is a member of the Perspectives EditorialBoard. This bibliography includes references to books,articles, bibliographies, and research guides that couldpotentially prove useful to both instructors and studentsand includes sources noted since the previous issue ofPerspectives.

George Anastaplo, George Anastaplo: AnAutobiographical Bibliography (1947–2001), 20 N. Ill. U. L. Rev. 581 (2000).

A bibliography, compiled by the author,listing his public papers, books, otherpublications, talks and papers, and selectedletters to editors.

Ken Bresler, Kissing Legalese Goodbye/LegalPractitioner’s Abecedarian Manual of Legalese,Jargon, and Multisyllabic Words to Make AforesaidLawyers, Attorneys, and Counselors-at-Law Feel and Sound the Same, 2001 [Littleton, CO: Fred B. Rothman Pubs., 1 vol.]

Two titles in one volume, the first stressingthe importance of writing succinctly andconcisely, and the second describing thelegalese, jargon, and multisyllabic wordsthat lawyers frequently use to make theirwriting seem important.

Teresa Brostoff et al., English for Lawyers: A Preparatory Course for International Lawyers, 7 Legal Writing 137 (2001).

Discusses an LL.M. preparatory course forinternational law students offered at theUniversity of Pittsburgh School of Law.

Charles R. Calleros, Using ClassroomDemonstrations in Familiar Nonlegal Contexts to Introduce New Students to Unfamiliar Concepts of Legal Method and Analysis, 7 LegalWriting 37 (2001).

Discusses two classroom demonstrationsused to introduce first-semester lawstudents to uncertainty in the law andprepare them for case synthesis.

Morris L. Cohen, Training Law Librarians in the Use of Rare Legal Materials, Legal ReferenceServices Q., Nos. 1/2, 2001, at 29.

Includes a model curriculum (withbibliographic references) for law librariansin the use of rare materials.

Lucia Diamond, Roman and Canon Law Research, Legal Reference Services Q., Nos. 1/2,2001, at 99.

“[D]escribes the types of researchers whoconsult Roman and canon law sources,discusses the research needs of theseresearchers, and explains the varyingcitation formats that have been used forthese works.” Id.

Joseph F.C. DiMento et al., Corporate CriminalLiability: A Bibliography, 28 W. St. U. L. Rev. 1(2000–01).

An extensive bibliography of books andarticles covering more than 100 years that is intended “to point scholars, lawmakers,and policymakers to the extensive Englishlanguage literature on corporate criminalliability.” Id. at 3.

Jo Anne Durako, 2000 Survey Results, Associationof Legal Writing Directors/Legal Writing Institute, 7 Legal Writing 155 (2001).

A summary of the ALWD/LWI responsesfrom 137 law schools.

Pamela Edwards & Sheilah Vance, Teaching SocialJustice Through Legal Writing, 7 Legal Writing 63(2001).

An examination of “the parameters of social justice and the goals advanced byincorporating social justice issues into legal writing curricula,” followed by“suggestions for fact patterns that containsocial justice issues either as the backgroundto the assignment or as the body ofsubstantive law.” Id.

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



Melissa S. Fry, Dormant Statutes and the LegalConcept of Desuetude, Legal Reference Services Q.,No. 4, 2001, at 67.

An annotated bibliography of sources thatconsider dormant or desuetudial statutes(those that outlive their use and theiroriginal purpose).

Bryan A. Garner, Clearing the Cobwebs fromJudicial Opinions, Ct. Rev., Summer 2001, at 4.

A strong argument is made that judgesshould put citations in footnotes (not in the text of the opinion) and generally notuse substantive footnotes. But see Posnerentry infra.

Jules Gleicher, The Bard at the Bar: Some Citationsof Shakespeare by the United States Supreme Court,50 Okla. City U. L. Rev. 327 (2001).

A discussion of 36 cases in which theSupreme Court of the United States hasreferred to Shakespeare in its opinions.

Joseph Kimble, First Things First: The Lost Art of Summarizing, Ct. Rev., Summer 2001, at 30.

Discusses the importance of summarizingand the value of putting these summarystatements at the front of any piece of legalwriting.

Sheryl Summers Kramer, A Research Guide toMedical Malpractice and the Law: Revisited, Legal Reference Services Q., No. 4, 2001, at 111.

An update of an article published in 16 LRSQ., No. 1, 1995, at 31, with the purpose of assisting personal injuryattorneys litigating medical malpracticeclaims.

Mark W. Lambert & Michael Widener,Bibliography on Rare and Archival Law Materials,Legal Reference Services Q., Nos. 1/2, 2001, at 79.

A bibliography of all the existing literatureon the administration and use of rare lawbook collections and legal archives, ininstitutional settings. Id.

Jan M. Levine & Kathryn M. Stanchi, Women,Writing & Wages: Breaking the Last Taboo, 7 Wm. & Mary J. Women & L. 551 (2001).

An article that has as its goals “(1) to expose just how shamefully low some legal writing salaries are, (2) to demonstratethe links between the existence of the fieldof legal writing, the low salaries paid and the predominant gender of writing teachersand (3) to empower legal writing professorsto negotiate for (and receive) salaries thatmore closely reflect their work and merit.”Id. at 552.

James B. Levy, Better Research Instruction Through“Point of Need” Library Exercises, 7 Legal Writing87 (2001).

The author describes how a library map,flowchart, and research log can be used in connection with an “open memo”assignment to teach legal research in a way that closes the gap between classroomlectures and in-library exercises.

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

“[D]iscusses the important relationshipbetween a teacher’s passion for the materialbeing taught and the student’s ability tolearn.” Id. at 40.

Laurel Currie Oates, I Know That I Taught ThemHow to Do That, 7 Legal Writing 1 (2001).

Discusses the role that “transfer,” i.e.,realizing that something learned in one class can be used in another class, can playin the research and writing processes.

Rosemarie Ostler, The Joys of Plain English,Student Law., Sept. 2001, at 32.

Provides a discussion of the basics of usingplain language rather than legal jargon.



Richard A. Posner, Against Footnotes, Ct. Rev.,Summer 2001, at 24.

A response to the Garner article supra,arguing that while there is some merit toputting citations in footnotes (rather than inthe texts of opinions) there is not enough tooffset the negatives.

Carole Prietto, Rare and Archival Law Materials onthe World Wide Web: An Evaluation of Selected Sites,Legal Reference Services Q., Nos. 1/2, 2001, at 67.

“[O]utlines some of the author’s criteria forgood web sites … and discusses selectedlegal studies web sites in terms of theirusefulness as public service tools.” Id.

Kimberly Pruett, Sexual Harassment in theWorkplace: A Legal Research Guide, 2001 [Buffalo:William S. Hein & Co., Inc., 28 p.]

Discusses federal statutes, federalregulations, case law, texts and treatises,legal encyclopedias, practice guides, and government publications that areconcerned with sexual harassment in the workplace.

Eugene R. Quinn Jr. & Kathleen A. PortuanMiller, Understanding Patents: A Legal Overviewand Research Bibliography, Legal Reference ServicesQ., No. 4, 2001, at 85.

“[P]rovides an overview of patents, withbackground information on the U.S. Patentand Trademark Office and includes whatcan be patented, the requirements of utility,novelty, and nonobviousness, who mayapply for a patent, what the patentapplication must include, and prior artsearches.” Id.

Mary Rumsey, Electronic Media Discovery (EMD):Issues in Electronic Records, Discovery and Evidence,Legal Reference Services Q., No. 4, 2001, at 19.

A bibliography of materials on electronicmedia discovery (EMD), including articleson “discoverablility, evidencing issues, datamanagement costs and sanctions, as well ascitations to sample documents,” with afocus on “civil litigation and corporate datamanagement.” Id.

Michael Schau, Animal Law Research Guide, 2 Barry L. Rev. 147 (2001).

An annotated bibliographic guide to books,articles, cases, and Web sites related toanimal law.

Craig T. Smith, Synergy and Synthesis: Teaming“Socratic Method” with Computers and DataProjectors to Teach Synthesis to Beginning LawStudents, 7 Legal Writing 113 (2001).

Discusses how the Socratic method ofinstruction can be enhanced bysimultaneous use of a computer and a LCD (liquid crystal display) data projector.

Nishan Swais, Putting It in Writing: Drafting Faust’s Contract with the Devil, 14 Can. J. L. &Juris. 227 (2001).

Faust’s pact with the devil is reduced towriting in the form of a humorous, legallybinding agreement for purchase and sale.

David Warrington, Helping Historians Write LegalHistory “From Below”: Collecting New Sources,Teaching New Strategies, Legal Reference ServicesQ., Nos. 1/2, 2001, at 17.

“[O]utlines the information sources that alibrarian may use to become familiar withthe literature in legal historiography and …suggests ways that a library can formcollections in non-traditional genres ofresearch materials that support these newapproaches to legal history.” Id.

© 2002 Donald J. Dunn


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