Monthly Archives: June 2012

Legal Writing Lesson from Supreme Court’s Decision on Health Care

In the midst of reading SCOTUS blog’s live blog of the delivery of the Supreme Court’s decision in the health care case (haven’t read the opinion itself yet, as it’s just been posted), I spy a legal writing lesson in a comment from the blog:

“Essentially, a majority of the Court has accepted the Administration’s backup argument that, as Roberts put it, “the mandate can be regarded as establishing a condition — not owning health insurance — that triggers a tax — the required payment to IRS.”  Actually, this was the Administration’s second backup argument: first argument was Commerce Clause, second was Necessary and Proper Clause, and third was as a tax.  The third argument won.”

Legal writing lesson to be gleaned: In a really important case, always have (at least one!) back-up argument!

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A blog of advice for law students and law graduates

I just came across an interesting blog by Wolters Kluwer, a law and business publisher that publishes materials for attorneys and for law students, including law school case books, study aids, and more. The blog, aimed at an audience of law students and young lawyers, is called “Becoming a Lawyer,” and can be found at http://bal.wolterskluwerlb.com/category/pre-law/

The blog categorizes its posts under a number of topics including: “Pre-law,” “1L,” “2L and 3L,” “Bar Review,” and “Job Advice.”

Presenting Your Legal Research to a Partner: A Guide. Part Two: Presenting your Research

Part Two: Presenting your Research

(For Part One, see post from June 12)

In Part One of this post, I gave advice on how to clearly identify what your supervisor (whom we are calling “the partner”) wants you to do when you’re given a legal research assignment, and how to design and follow an effective research process. Now assume that you’ve finished your research and the partner has asked you to come to her office to report your results. Here in Part Two, I’ll advise you on how to verbally present your research findings and resulting advice in a meeting between you and the partner.

  • Focus on the needs of your audience. Think of the partner as your internal client. That is, the partner has needs, and it’s your job to meet those needs. In a nutshell, the partner’s needs in this meeting are to get from you a clearly articulated answer to the question the partner asked, and an assessment of what to do next. Most likely, what the partner wants you to do in the meeting is to have an answer to the research question, articulate that answer clearly and directly and in terms of the law’s impact on your client’s specific fact situation, present the partner with the main legal sources from which you derived that answer, and advise the partner on what to do next. (This last step may mean telling the partner your opinion as to whether the client should file a claim in court, make a settlement offer, make a motion, obtain discovery, or some other action). The partner doesn’t want an abstract summary of the relevant law; she wants you to explain how the relevant law applies to your client, and she wants you to advise her on what to do.
  • Prepare for the meeting. The partner is busy and is trying to balance multiple cases. Don’t waste her time. To make the meeting as efficient and productive as possible, prepare for the meeting beforehand and plan carefully what you want to get across. Figure out what your audience wants to know and focus your presentation on presenting that information. Remind yourself of what the partner asked you to find out and prepare a direct answer to that question. Anticipate the follow-up questions the partner would be likely to ask and prepare answers to those questions. If in your research you have identified arguments that your opponent will likely make, prepare to discuss those and to discuss how you can counter those arguments.
  • Start with the answer, then fill in the support. Be ready to begin the meeting with a 5 to 10 minute speech that explains what you learned in your research process.
    • Start by reminding the partner what client matter you are discussing and what question(s) she asked you to answer.
    • Next, give the partner a short answer (a few sentences) to the research question(s). This should be similar to an executive summary, or to a Short Answer or Preliminary Statement in a memo or brief. What’s the bottom line? What are the rights and/or liabilities of your client?
    • After giving the partner the short answer, go back and explain the supporting explanation in more detail. This is the stage at which you explain the relevant law. If there is a controlling statute and/or regulation, begin with that and explain what it says. Then briefly summarize the most relevant individual cases and explain how  each one is analogous to or distinguishable from your client’s situation, and what the result is for your client under the case law as a whole.
  • How to talk about your research findings:
    • Don’t talk to the partner as if she knows more than you do about your research issue. On this issue, having done the research, you are the expert. So explain the law to the partner from your expert perspective. Do not just hand the partner a pile of cases and expect her to make sense of them. It is up to you to digest and synthesize the law and then explain your synthesis to the partner.
    • If there is a controlling statute or regulation, give the partner a copy. If it is long, highlight the relevant language.
    • Don’t present too much extraneous information.  If you found 20 relevant cases, pick out the few (perhaps four or five) most relevant ones to discuss in the meeting, and then tell the partner that there are 15 more and offer to give them to the partner. (See Part One for tips about the form in which to deliver the case law).
    • Be prepared to be questioned by the partner. Try to anticipate the questions the partner is likely to have and be prepared to answer them.
    • Bring all the written material you will need to answer questions during the meeting.
    • Bring (or deliver electronically before the meeting) copies of the most important authorities for the partner to keep. Mark the copies with highlighting and/or notes to point out how each authority relates to your issue.
    • Don’t present the law more favorably than it actually is. Tell the partner what she needs to know, not what you think she wants to hear.
      • On the other hand, do identify the strongest arguments your client could make under the controlling law. But offer a realistic assessment of how likely these arguments are to prevail.
  • Ending the meeting. End your presentation by briefly reiterating your answers to the research questions and your advice about how this affects your client. Then ask the partner what next steps she would like you to take, if any. Thank her for her time.
  • Keep a record. Be sure to keep records of both your research process and your research results. The partner may come back to you months from now wanting a reminder of what you found out, and you may not remember without referring to your records. You will thank yourself later for keeping excellent records. Westlaw Next and Lexis Advance are new platforms for Westlaw and Lexis that have very useful foldering functions – take advantage of these for storage of research on individual matters.

The Importance of Correct Grammar and Usage in Workplace Writing

Today’s Wall Street Journal has an article about the prevalence of grammatical and other usage errors in workplace writing, particularly as the use of informal communication methods such as email, Twitter, texting, and other social media increases. The article can be found here:

http://online.wsj.com/article/SB10001424052702303410404577466662919275448.html?mod=ITP_personaljournal_0

The article notes that employers still demand correct grammatical usage in the written work product of their employees, regardless of the method of delivery. Or, in Plain English (ha ha! inside grammar joke!), the fact that you may be writing to your senior partner or to a client in an email is no excuse for incorrect grammar. Your audience will still expect the same level of correctness and formality whether you are writing a memo, brief, client letter, or email. And if you deliver a product that sounds like a Tweet from Rihanna, your audience won’t respect your delivery or your message.

Luckily, there are plenty of useful resources out there for sophisticated writers who want to perfect their use of grammar, punctuation, syntax, and style. I’ll discuss a few in this post.

Ben Yagoda of The New York Times recently blogged about the most common mistakes in comma usage. Correct usage of commas may seem unimportant to the uninitiated, but the failure to place commas correctly can change the meaning of a sentence or render its meaning ambiguous. Here’s the NYT post:

http://opinionator.blogs.nytimes.com/2012/05/21/the-most-comma-mistakes/?smid=FB-nytimes&WT.mc_id=OP-E-FB-SM-LIN-TMC-052212-NYT-NA&WT.mc_ev=click

That Ben Yagoda post is part of the NY Times’ blog entitled “Draft,” which the Times describes as featuring “essays by grammarians, historians, linguists, journalists, novelists and others on the art of writing.” You can find other posts in the “Draft” blog at http://opinionator.blogs.nytimes.com/category/draft/

I’m also rather excited about a new online grammar product for lawyers from Carolina Academic Press (“CAP”), available at http://www.coregrammarforlawyers.com/. It’s called “Core Grammar for Lawyers”, which CAP describes as “an online, self-directed learning tool designed to help law students, pre-law students, paralegal professionals, and practicing attorneys acquire the grammar and punctuation skills that are prerequisites to successful legal writing.”

This interactive online learning tool includes the following:

  • a Pre-Test of general and law-specific grammar skills;
  • online Lessons on each tested topic;
  • interactive practice Exercises following each Lesson;
  • an Index of Grammar Rules for students to use as a reference; and
  • Post-Tests to confirm mastery.

Finally, I’ll mention a few good grammar and usage books, some classic, some less well-known:

William Strunk, The Elements of Style (update 2011 edition);

Bryan A. Garner, Garner’s Modern American Usage and The Elements of Legal Style;

William Zinsser, On Writing Well;

Joseph Williams, Style: Lessons in Clarity and Grace (10th edition)

Presenting Your Legal Research to a Partner: A Guide for Summer Associates and Young Associates. Part One: The Successful Research Process

 

Part One: The Successful Research Process

By this point in June you have probably been at your summer job for a couple of weeks. Chances are that you have been, or soon will be, asked to research a legal issue and then report to another attorney at your job. This may be a partner, senior associate, general counsel, or other superior. For simplicity’s sake, we’ll call this person “the partner.” The prospect of verbally reporting research to a superior often strikes fear into the hearts of summer associates (and even young First or Second Year Associates). It need not, if you take the process seriously and prepare adequately for it. I’ve written two related posts about how to achieve this. The first post focuses on how to research your assigned issue most effectively. The second post focuses on how to verbally present the results of your research to the partner.

Let’s say you’ve been called into the partner’s office and asked to research an issue and get back to the partner verbally with your answer.  What follows are my top pieces of advice for how to proceed from there.

  • First, clarify exactly what the partner wants you to do next. Does she want a verbal report? Does she want a written work product? If so, what form does she want it to take – full memo? Short memo? Email?  For purposes of this post, we’ll assume she wants a verbal report  — at least as the first work product.
    • The partner will expect you to keep track of your research. Also ask her whether she would like copies of the most relevant statutes and/or cases you find, and if so, whether she would prefer hard copies or an electronic version (perhaps in folders on Lexis Advance or Westlaw Next). In either case, ask her if she would like the copies to be marked with your highlights and key comments.
  • Ascertain your due date. How soon does the partner want the answer? Hours? Days? At your convenience?
  • Ascertain the approximate amount of time the partner wants you to spend doing the research. Are there client-imposed limits on the amount of time you should spend or the sources you should use; for example, are there any limits on the use of paid electronic databases such as Lexis or Westlaw?
  • Most importantly, be sure you understand what legal question (or questions) the partner wants you to answer – and whether there are any legal questions that you should avoid looking into.
    • The above should involve learning the facts that the partner believes you need to know to research the issue. Ask the partner to tell you the basic fact situation. Ask her, too, where you can find out other facts if you need to. Is there a client interview written up? Are there discovery documents you should refer to? Is there anyone you should call?
  • Ascertain whether there is a relevant jurisdiction. Does the partner want to know only what the law is in a particular state or federal jurisdiction, or does she want a general survey of what the law in most jurisdictions says?
  • As you begin to research, and throughout the process, keep track of your research process. This will save you from needlessly repeating steps later. Also, the partner may well want to know where you looked, so that she can ascertain, when you meet with her, whether you missed any relevant sources.
  • Think outside the box in terms of research sources; don’t limit yourself to Lexis and Westlaw. Consider consulting sometimes overlooked sources like print treatises, free internet websites (government websites can be particularly useful), and non-legal databases. Don’t stop with primary sources; remember the secondary sources (treatises, law review articles, encyclopedias, ALR articles, etc.) that you learned about in your legal writing class.
    •  Also remember that research sources can include human beings! Consider whether the firm has any attorneys who are well-versed in this area of law. They may be able to help you learn the basic legal principles very efficiently.  Also make liberal use of the experience and knowledge of the firm librarians and firm Lexis and Westlaw representatives or Research Attorneys through the Lexis and Westlaw 800 numbers.
  • What to look for first in your research process: The first and most important question in any legal research process is whether there is any enacted law – Constitutional provisions, statutes, regulations, and/or international treaties – that governs your legal issue.  Ascertain this first. If there is controlling enacted law, obtain it, read it carefully, and figure out what requirements it sets up. For example, if there is a statute or regulation, does it contain required elements? If so, list them for yourself. This is the first thing you will need to tell the partner.
  • What to look for second in your research process: If enacted law controls your issue, case law interpreting that enacted law will still be relevant. Remember that enacted law can be a great source to find interpretive case law. For example, an annotated statute will list interpretive case law in the annotations following the text of the statute.
  • After doing your initial research (and getting a preliminary sense of the answer to your research question(s)), you may want to have a brief verbal conversation or email exchange with the partner to report on your findings thus far and to check whether the partner wants you to continue in the same direction or perhaps change course or even stop the research.

Coming soon…. Part Two: Presenting your Research to the Partner

Success in Your Summer Law Job

So you’ve got a summer law job! Congratulations! Whether you are working as a law firm summer associate, a judicial intern or extern, or as an intern at a corporation or a governmental or public interest organization, this is your chance to shine. Your summer job provides you with two great opportunities. The first is to put into practice the analytic, research, and writing skills that you’ve been building in law school – and to apply those skills to the problems of real-life clients. And second, this summer may be your opportunity to build bridges to your professional future, either by securing a job for after you graduate, or by building networking relationships that you can draw on once you’re a practicing lawyer.

Either way, the impression you make on your summer employers is crucial.  There is lots of advice out there about how to be the best summer associate you can, and I’ve compiled links to some good advice below. As someone who was a summer associate at two large urban law firms, did work for several public interest organizations, and supervised numerous summer associates as a practicing lawyer, my personal advice can be summarized as follows:

1)      Know that you are already a professional. Act like one. Be responsible, responsive, proactive, hard-working, and respectful.

2)      Go above and beyond. Do what your assignment asks as thoroughly, efficiently, and promptly as you can. Then go beyond what you were asked. Try to anticipate what the logical next step would be in the case and offer to perform that next task.

3)      Nail down your assignments. Understand what you are asked to do and how to do it. Do this as early in the process as possible, so that you don’t waste time. As you are receiving an assignment, ask questions until you are sure you completely understand what the attorney is asking you to do – and what she doesn’t want you to do.

4)      Make sure you have the skills you need: ask for help.  Efficiency is important; clients don’t want to pay for hours you spent flailing around. So don’t flail around. Make liberal use of the resources available to you so that you get to your answer or your outcome as efficiently as possible. Ask for help with research from law librarians (they are amazing founts of knowledge), Westlaw and Lexis representatives, or other professionals who can help you locate information or learn how to do a drafting or discovery task. If the firm has a bank of sample memos, briefs, discovery documents, transactional documents, etc., access them and use them to model your own work. Don’t reinvent the wheel.

5)      Get more training. You can never be too good a researcher. Use part of your time this summer to get better at using Westlaw, Lexis, Bloomberg, Google Scholar, Google Advanced Search, and other search engines.

6)      Work hard. This is the best way to make yourself known and liked by your employers. There may be many opportunities for you to get wined and dined by your summer employer, and you should take some of those opportunities – you want the lawyers there to get to know you as a person. But don’t take too many of them. If you go out to a 2-hour lunch every day and then come back lethargic from food and leave at 5:00 p.m., you won’t get much work done. And doing good work that impresses your employers is the main reason you’re there.

7)      Don’t work TOO hard. The law school academic year is a grind. You probably didn’t eat right or get enough sleep or exercise. You probably ignored your friends and family. Remedy those problems this summer.  Recharge and renew yourself so that you can return refreshed for your next year of law school!

Below I’ve linked to some useful sources that provide more detailed advice about how to succeed in your summer job:

i)                    “The Law Firm Summer Associate Dance,” http://www.law.yale.edu/documents/pdf/CDO_Public/cdo-summer_associate_dance.pdf

ii)                   “Successful Summers,” http://www.law.northwestern.edu/career/jobsearch/documents/summer_success.pdf

iii)                 “Secrets of Success for Today’s  Summer Associates,” http://www.bakerlaw.com/files/Uploads/Documents/News/Articles/LITIGATION/Wang_&_Weiser-Law360-6-1-09.pdf

iv)                “Five Success Tips Every Summer Associate Should Know,” http://ms-jd.org/five-success-tips-every-summer-associate-should-know

Resources for Judicial Clerks

It’s summer, and many law students are clerking, interning, or externing for judges. To help you succeed this summer, I’ve compiled a short list of resources for students clerking or externing for judges.

  • Handbook for federal judicial clerks.  The Federal Judicial Center has prepared a handbook for law clerks to federal judges. It can be found here:

https://public.resource.org/scribd/8763855.pdf

Books about judicial opinion writing. There are a number of books on the subject. Some helpful ones include:

    • The Honorable Ruggero J. Aldisert, Opinion Writing (2d edition 2009).
    • Mary Dunnewold, et al, Judicial Clerkships, A Practical Guide (2010).
    • Joyce George, The Judicial Opinion Writing Handbook
  • A bibliography of sources about judicial clerkships.  The following law review article compiles a useful bibliography of resources about finding judicial clerkships and being an effective judicial clerk. Mary Dunnewold, Beth Honetschlager, Brenda Tofte, Judicial Clerkships: A Bibliography, 8 Legal Comm. & Rhetoric: JALWD 239 (Fall 2011).