Third 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 third 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.

Professor Romig’s first post appeared at https://thinklikealawyer.wordpress.com/2013/01/12/guest-blog-post-in-the-project-management-for-lawyers-series/, and her second post appeared at https://thinklikealawyer.wordpress.com/2013/01/22/second-guest-post-on-using-checklists-in-project-management-for-lawyers-series/.

Here is Prof. Romig’s third post in her checklist series. This post focuses on checklists for legal writers working alone. The final post in this series will focus on checklists for writers working in teams.

Checklists for the Process of Legal Writing: Thinking Outside the Box and Aristotle on an App
by Jennifer Murphy Romig

This post focuses on how checklists can help you with your writing process and, by extension, help you with your thinking process. Process-based checklists particularly help with complex assignments including “outside the box” assignments that have no obvious format or formula.

The hero of the checklist story is Atul Gawande, author of The Checklist Manifesto: How to Get Things Right. As he writes, checklists are important for catching the “stupid stuff,” but they are more than that. They are an essential method for high-level professionals to handle the complexity inherent in modern work. Sophisticated professional work is often so complex that there couldn’t possibly be one right answer that any checklist could guarantee. However, checklists can encourage a thorough process that is more likely to lead to an effective outcome.

Many writing projects do meet Gawande’s idea of complexity: there is no one right answer or replicable solution, but rather a lot of information to coordinate and use for the ultimate goal of solving an important problem. When you face a project like this, a process-based checklist can help. After addressing a few checklists that could apply across a broad spectrum of document types, this post will end with advice on developing and evaluating your own checklists.

Perhaps the most general and most famous rhetorical framework comes from Aristotle:
■What is my purpose for writing?
■Who is the audience?

Using Aristotle’s framework as a checklist throughout the writing process could lead a writer to make good decisions at a number of difficult points. Stopping and reflecting on purpose could help the writer make tough calls on what to include and what to cut out. Stopping and reflecting on audience could lead the writer to restyle material that has drifted away from the needs of the particular audience. Suffolk Law School has brought a modern twist to Aristotle’s framework by placing these questions within a helpful free iPhone app for legal writing, iWriteLegal (http://www.law.suffolk.edu/academic/jd/lps/iwritelegal/index.cfm). The iWriteLegal app contains many other helpful legal writing checklists as well.

While writers may find it helpful to assess purpose and audience pervasively throughout the writing process, other compositional frameworks emphasize distinct phases of the process. An interesting framework of the creative process recently discussed in an article by Professor Barbara Blumenfeld is this: preparation; incubation; illumination; and verification. (Professor Blumenfeld’s article, “Rhetoric, Referential Communication, and the Novice Writer,” can be accessed here: http://www.alwd.org/LC&R/CurrentIssues/2012/Blumenfeld_1.html. The thoughts in this post also draw on her article in The Law Teacher, available at http://lawteaching.org/lawteacher/2011fall/lawteacher2011fall.pdf.).

As Professor Blumenfeld suggests, these four broad steps can be broken down a bit further as follows:
■Preparation
■Fact gathering
■Legal research
■Incubation
■Assessing how to connect material to audience and generating possible solutions
■Illumination
■Articulating and choosing how to approach the issue
■Verification (also described as Substantiation)
■Outlining, drafting, revising and finalizing

Using Blumenfeld’s model as a checklist would be too broad for some writers, yet it could be very helpful to others whose writing process is somehow stuck. Some writers tend to linger too long in preparing and incubating when they need to actually commit something to paper. Others jump to verification without really processing what they are trying to accomplish, or over-verify too early by obsessing on every sentence as they write it. Using a checklist based on Blumenfeld’s four steps and the more detailed processes within these steps could help keep the process moving while also protecting a middle stage for reflection. (Side note—the classic editing advice to put a draft away for a day or so and then return to it is a type of verification: Did what I wrote two days ago really make sense to the current “me,” who is no longer so caught up in the writing process?).

The framework for the creative process that Blumenfeld describes overlaps in interesting ways with frameworks for composition such as the Flowers model of “madman-architect-carpenter-judge” popularized among lawyers by Bryan A. Garner. These models generally encourage writers to begin by suppressing and then later indulging their inner critics. Using these frameworks specifically in checklist form could help writers stay focused and make good decisions about when to shift gears. A process-based checklist won’t guarantee a right answer, but through its structure it can encourage a thoughtful and effective process.

Legal writing is no different from other forms of writing in some ways and thus can benefit from non-genre-specific frameworks for creativity and composition. Yet it also must embody competent legal research, analysis, and advice.

On this note, the checklist I wish I’d had in law school is basically the table of contents of Wilson Huhn’s The Five Types of Legal Argument. (In addition to Huhn’s book, I also wish I’d had Mary Beth Beazley’s textbook A Practical Guide to Appellate Advocacy, which introduced me to Huhn, among many other good ideas and sources).

Huhn’s slim little book is like a Strunk & White of legal thought, in a good way. As you’d expect from the title, Huhn outlines in clear detail the five classic types of legal arguments:
■text
■intent
■precedent
■tradition
■policy

Those five big arguments together form a great brainstorming checklist for assessing any analysis or argument, as Professor Inglehart has previously and independently recognized on this blog (https://thinklikealawyer.wordpress.com/2013/02/04/learning-to-craft-the-five-main-types-of-legal-arguments/). I really wish I’d had this checklist in my first couple of months practicing law years ago: I wrote a great brief on a principle of contract law, but as my supervisor pointed out, it lacked one small but crucial element—the statute that codified the common law principle at issue in the brief. Using Huhn’s list in my research and writing process would have made me think twice about the mistaken assumption that a traditional common law analysis would be based only on case law.

For law students, your own legal writing textbook probably has some really good checklists for working through your research, analysis, and writing. Just one representative example of many great sources is Richard K. Neumann, Jr.’s Legal Reasoning and Legal Writing: Structure, Strategy, and Style. Neumann’s book includes helpful checklists for managing your creative process and for assessing your theory of the case—both complex tasks with no single right answer.

Neumann’s book—like virtually every other legal writing text you could encounter—also contains fabulous checklists for editing and polishing your writing. These checklists can be lengthy, but they can also be priceless. It is difficult to overstate the importance of having a flawless resume and writing sample in the current environment for law students seeking employment.

If you no longer have your legal writing textbook, you may want to buy another copy just for the checklists. But you could also try entering “legal writing checklist” into any search engine and you will see a lot more choices. As you think about bringing checklists into your legal writing process, evaluate them using the criteria for good checklists identified in The Checklist Manifesto:

■Are the items on the checklist clear to you?

Each item on the list should be something you understand how to implement. Do you know what each item is asking you to do, and how to do it?

■Does the checklist include only “killer” items?

You will need to define for yourself what items are so “killer”—i.e. important and potentially harmful to your writing success—that they deserve inclusion on the checklists you use.

■Is the checklist something you will really, truly, consistently use?

As suggested in the first post of this guest series, a checklist only works if you use it. If the list is too long or too vague or not right for you, keep searching for or developing a checklist that you will use.

Keep in mind that your checklists should change as your own writing process changes and as you work on different types of assignments. The “killer” items that you need to remind yourself about when you’re a 1L will be at least somewhat different from your “killer” items when you are a 3L and a practicing attorney. Likewise, the right process depends in part on circumstances: the checklist for a bid protest written in one day will probably be shorter and more urgent than the checklist for an appellate brief about that same bid protest written over a month-long period. In The Checklist Manifesto, Gawande describes how airline pilots use hundreds-of-pages-thick flight manuals by delving into the short, specific checklists for each individual stage of the flight process. Similarly, checklists for your own writing process can help guide the way.