Second Guest Post on “Using Checklists” in “Project Management for Lawyers” Series

Today, as part of my series on “Project Management for Lawyers,” I have the second in a series of guest posts on “Using Checklists for Legal Writing.” My guest poster for this series is Professor Jennifer Murphy Romig from Emory Law School. Here is Prof. Romig’s second post in her checklist series.

Using Checklists for Writing Particular Types of Legal Documents
by Jennifer Murphy Romig

[This post continues the guest series on “Using Checklists for Legal Writing,” part of the Think Like a Lawyer blog’s larger series on “Project Management for Lawyers.” The first post, https://thinklikealawyer.wordpress.com/2013/01/12/guest-blog-post-in-the-project-management-for-lawyers-series/, introduced some basics of checklists, including theory about why they work, and caveats about what they don’t do. This post focuses on using checklists for writing particular types of documents.]

Checklists come in two classic types, as outlined in Atul Gawande’s book The Checklist Manifesto: How to Get Things Right: “read-do” and “do-confirm.” Both types can be useful for writing particular types of legal documents, including but definitely not limited to the traditional 1L fare of office memos and briefs.

A read-do checklist is something that the writer should literally read and do, step by step like a recipe (Gawande’s own analogy from the book). When I was practicing law, I used at least two types of checklists in this way. First, when preparing an answer to a complaint, I read through a checklist of potential affirmative defenses and evaluated whether to include each one. (This example shows the inextricable connection between good writing and good lawyering). Second, when drafting a response to an audit letter, I closely followed a checklist for how to structure the response. Although my own checklist has been lost in the 12 years I’ve been teaching legal writing, the form letter at the end of these 2005 Texas CLE materials (http://images.jw.com/com/publications/503.pdf) closely resembles the checklist I used. It begins as a sample letter, but ends by functioning as a read-do checklist for how to complete each required section.

A do-confirm checklist is different. For this kind of checklist, you go ahead and do the work in a holistic, intuitive way: just sit down and write a draft. You then go back over the draft and methodically follow a do-confirm checklist. The point is to make sure that you actually did the things that need to be done. I use a kind of informal do-confirm checklist with my e-mails. First I write and then check them for the following:
• Does the beginning paragraph clearly introduce the e-mail’s purpose and context?
• Does the beginning paragraph acknowledge what the recipient already knows about the topic being discussed?
• Does the middle use relatively short paragraphs?
• Do any hyperlinks in the e-mail actually work?
• Does the end provide a clear conclusion or description of potential next steps?

Read-do and do-confirm checklists are valuable, and there’s no clear rule for when to use one over the other. A read-do checklist could be good for making a rough draft of a type of document you’re not previously familiar with. It could be particularly good for documents with highly formal organizations such as audit letter responses. More broadly, for any type of document, a read-do checklist could help you cut through the difficulty of how to start. In this way, a read-do checklist is consistent with good learning theory – and good project management theory – about breaking large projects down into small steps.

The do-confirm checklist seems like the most natural fit when you are already familiar with the type of document you’re writing. It could also work well when you know the basic strategy and content that you need to get across, but when you want to make sure you come back and dot all i’s and cross all t’s. Using a do-confirm checklist goes hand-in-hand with other classic advice for catching errors, particularly the advice to print out your work and take it to another room to review, thus forcing yourself to view it with fresh eyes. As discussed in the earlier post on the theory of checklists, one reason they work so well is that they interfere with the fast, intuitive part of your brain and make you slow down and critically examine what you’re looking at.

A variety of resources provide checklists for particular types of documents. Austen Parish and Dennis Yokoyama’s book Effective Lawyering: A Checklist Approach to Legal Writing & Oral Argument is based around extensive checklists for all aspects of legal writing. They include checklists for specific document types such as various types of letters, e-mails, and academic legal writing. The authors’ premise is that “the reader has learned or is learning the basics of legal writing, and at most needs only reminding of what they are.” This premise correlates with Atul Gawande’s advice about checklists for high-performing professionals: once you’ve learned how to do something, use a checklist to avoid the “stupid” yet potentially serious mistakes.

Wayne Scheiss’s book Writing for the Legal Audience is a concise overview of the distinct and important audiences that lawyers address when they write. Although the book doesn’t really contain checklists as such, its headings could serve as good checklists. They summarize the most valuable points to consider when drafting an e-mail, or an affidavit, or a mediation statement, and so on.

As a law student you may have free access to sources such as the Practical Law Company’s checklists for a variety of lawyering tasks, available at http://us.practicallaw.com. This site has sections for practitioners and law students, and the law-student section includes a “Summer Survival Guide” with instructions for completing numerous legal tasks.

Law review articles may also provide guidance on particular kinds of documents. Here are a few law review articles that focus on specific document types:
• Appellate briefs: Sarah Ricks and Jane Istvan, Effective Brief Writing Despite High Volume Practice: Ten Misperceptions That Result in Bad Briefs, 38 Toledo L. Rev. 1113 (2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=996907)
• Demand letters: Carrie Sperling, Priming Legal Negotiations Through Written Demands, 60 Catholic L. Rev. 1 (2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1661145
• Student scholarship: Wanda Temm, Training Independent Learners: Student Self-Editing Checklist for Law School Papers, Notes and Comments, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1130308 (This checklist forces not just checking off each item but individually signing and dating each item on the checklist, a rather strong form of accountability.)

One form of document-based checklist is the popular “self-graded draft” exercise originated by Mary Beth Beazley of Ohio State University. If your legal writing professor has held an editing workshop that led you through specific items to look for in your memo, then you have done a variation of the self-graded draft exercise—which in turn is a special kind of editing checklist designed to help students learn. An example of one item on Professor Beazley’s list: “Highlight the first sentence of each paragraph (“topic sentence”) in yellow. *First, check the sentences for substance, and write a topic sentence in the margin if the sentence is not substantively strong.” You can see the “macro” (big picture) and “micro” (small picture) versions of her original exercise on pages 194 and 197 of “The Self-Graded Draft: Teaching Students to Revise Using Guided Self-Critique,” available at http://lwionline.org/uploads/monograph/volume_one/Selfgraded_Beazley.pdf.

So the read-do and do-confirm checklists can help a lot with drafting particular kinds of documents. But what if you get an assignment to write a document that doesn’t fit into any particular category? The next post will move away from talking about particular documents and will focus instead on using checklists to enhance your writing and editing process.