FALL 2015/VOLUME 12

Articles

Is the Medium the Message? Unleashing the Power of E-Communication in the Twenty-First Century

Ellie Margolis, Professor of Law, Temple University, Beasley School of Law

The technological revolution has brought dramatic changes to the world of law practice, including legal research and writing, yet the basic conventions of legal writing have remained unchanged for decades. Memoranda and briefs today look much as they did early in the last century. Yet if the medium of legal communication has shifted from print to pixels, shouldn’t that lead to changes in the way legal analysis is communicated? This article considers the differences as a result of both writing and reading in a digital medium, and addresses the changes in writing that should flow from that, including changes in typography and document design, changes in document navigation and communicating organization, and the use of hyperlinks and images to create multi-dimensional documents. The article suggests that lawyers must make changes in traditional forms of legal writing in order to be effective writers for the 21st Century.

 

Legal Blogging and the Rhetorical Genre of Public Legal Writing

Jennifer Murphy Romig, Instructor, Legal Writing, Research, and Advocacy Program, Emory University School of Law

This article brings scholarly attention to the blog posts, tweets, updates and other writing on social media that many lawyers generate and many others would consider generating, if they had the time and skill to do so. In the broadest terms, this genre of writing is “public legal writing”: writing by lawyers not for any specific client but for dissemination to the public or through wide distribution channels, particularly the Internet. Legal blogging is a good entry point into public legal writing because legal blog posts often share some analytical features of longer articles alongside conversational conventions typical of writing on social media. Legal blogging is certainly not new, but this article brings new attention to it.

The article begins by reviewing helpful (nonlegal) advice from two recent writing guidebooks, Christopher Johnson’s Microstyle: The Art of Writing Little and Roy Peter Clark’s How to Write Short: Word Craft for Fast Times. Primed by the ideas in these books, the article explores the genre of legal blogging through two case studies of legal blog posts in 2014. Finally, the article puts legal blogging into context by addressing its similarities to and differences from traditional legal writing. Legal blogging offers a respite from the formalities of traditional legal writing, but it also brings its own set of expectations and constraints that define the evolving boundaries of this genre.

 

Ready or Not Here We E-Come: Remaining Persuasive Amidst the Shift Towards Electronic Filing

R. Lainie Wilson Harris, Esq., Visiting Instructor, Georgia Southern University

Lawyers are taught to be kind to their audiences in their legal writing form and function. With the advent of e-filing rules around the country, it is time for lawyers to fully embrace adaptations needed to make the e-reading experience comfortable for screen reading. When a document is read on a screen, there are no physical pages, but only paragraphs to scroll through. The entire look and experience of a document changes because of the scrolling versus page-turning.

This article explores the mandatory or permissive status of e-filing in the federal and state jurisdictions. Second, the article reviews the differences between reading in print and onscreen, and highlights those areas where legal writing forms will necessarily require technical and visual adaptation for readers’ maximum comprehension and thus for the authors’ persuasion and advocacy.

 

A Tale of Two Outcomes: Justice Found and Lost for Colorado’s Schoolchildren

Kyle C. Velte, Visiting Assistant Professor of Law, Texas Tech University School of Law

This article tells the story of one case, Lobato v. State, in which dozens of school districts, schoolchildren, and their parents challenged the constitutionality of Colorado’s state-wide public-school-funding system—and analyzes the impact of the stories told in that case to both the trial court and the Colorado Supreme Court through the lens of narrative theory.

The article’s goals are two-fold. First, it applies three story types—a “Story of the Parties,” a “Story of the Process,” and a “Story of the Law”—to analyze how judges are influenced by story. It concludes that trial courts can be influenced through the use of a powerful justice narrative told through a Story of the Parties frame. Analysis of judges’ acceptance or rejection of stories through a school-finance case study adds to scholars’ and practitioners’ understanding of the role of stories and “narrative reasoning” in both litigating and judging.

Second, the article posits that when compelling Plaintiff Stories are told in such cases, and when courts choose to hear those Plaintiff Stories and to elevate those stories over the Story of the Process and the Story of the Law, students and school districts  will  prevail.  However, where, as in Lobato, courts’ choice to minimize—in fact, ignore—the call of those Plaintiff Stories and instead choose to elevate the call of “law” stories or “process” stories, the loss of Plaintiff Stories can mean the loss of justice or, at minimum, the delay or deferral of justice. These three story types often intersect in cases. This article does not contend that every time a court rejects a plaintiff’s story that the outcome is unjust. Rather, it contends that in school- finance cases, such may be the result when the constitutional standard wielded by the court relies more on the stories of process or law than those told by the plaintiffs.

An Afterword to this story about story proposes future projects and reflects on how the Plaintiffs’ ultimate loss in Lobato might nonetheless engender meaningful reform for school finance in Colorado, as well as how the stories told in Lobato can further scholars’ and practitioners’ understanding of the power of storytelling.

 

Parsing the Visual Rhetoric of Office Dress Codes: A Two-Step Process to Increase Inclusivity and Professionalism in Legal-Workplace Fashion

Karen DaPonte Thornton, Associate Professor of Legal Research and Writing, The George Washington University School of Law

Legal employers expect attorneys in their offices to use the ethos of personal appearance to project an image of competence to clients. This expectation is largely unspoken, however, and polling and anecdotal evidence alike show that in today’s workplace, employers are frustrated with the level of professionalism demonstrated by new employees. The goal of this article is to encourage open conversations about workplace fashion as it relates to an attorney’s professional identity. It is in both the employer’s and employee’s interests to clarify employer expectations and empower new members of the legal profession to adopt a personal sense of style that projects competence, leadership, and professionalism, without subtracting out the self. Professional style and ethos, not conformity, should be the goal of office dress codes. This article is written from the perspective of a legal writing professor and advocates an approach to building a positive office culture by training new lawyers to parse the message of unwritten dress codes and participate in drafting inclusive office policies that accommodate disparate cultural, racial, and gender experiences. By making the unconscious conscious through open communication about employer goals and employees’ professional identities, biases can be overcome and new attorneys prepared for a profession where choice of dress projects an instantaneous message about an individual’s business judgment.

 

Language Ideology and the Plain-Language Movement: How Straight- Talkers Sell Linguistic Myths

Soha Turfler, Ph.D. student with the University of New Mexico, Department of English

The Plain Language movement wants to save us from the tyranny of legalese. The movement argues that plain style offers a solution, effectively freeing legal texts with specific language features. But, beneath its lessons, the Plain Language movement perpetuates its own myths. This article examines the ideologies of the Plain Language movement under sociolinguistic theories, arguing that these ideologies perpetuate three harmful myths about language use—prescriptivism, standardness, and moral superiority—that challenge the movement’s very aims and ideals. Plain style is neither linguistically, politically, nor morally superior. A singular style cannot free legal discourse from tyranny; if anything, it merely alters the composition of tyrants. This article therefore encourages all users and creators of legal texts to reexamine their beliefs about legal discourse and the current approach of the Plain Language movement.

 

The Care and Feeding of the Twenty-First Century Developing Legal Writer: A Primer for the Supervising Practitioner

Mary B. Trevor, Associate Professor and Director, Legal Research and Writing Program, Hamline University School of Law

This article addresses how attorneys who supervise developing writers can achieve a manageable balance between their competing duties of client representation and supervision. While often excellent writers themselves, practicing attorneys are rarely trained to supervise the writing process. Moreover, their primary professional obligations pull them in other directions, and the time investment required for working with developing writers may leave supervisors feeling significant pressure about meeting their client-representation obligations. At the same time, however, their charges are embarking on a professional writing career and engaging in a particularly intensive phase of writing development—a phase whose success may well depend on a dedicated supervisor. In response to the supervision vs. representation challenge, this article focuses on how to provide a key aspect of supervision—feedback—in time and cost-efficient ways. In particular, it will provide helpful background information and step- by-step suggestions for practicing attorneys who supervise developing legal writers.

 

Applied Legal Storytelling: A Bibliography

J. Christopher Rideout, Professor of Lawyering Skills, Seattle University School of Law

This article contains a bibliography on the movement known as Applied Legal Storytelling. Those who are interested in Applied Legal Storytelling examine the use of stories—and of storytelling or narrative elements—in law practice, in law school pedagogy, and within the law generally.

The Applied Legal Storytelling movement is largely associated with a series of biennial academic conferences that began in 2007, and the majority of the entries in this bibliography originated with presentations at one of those conferences. But the bibliography also acknowledges a number of articles that pre-date 2007 and that could be called precursors. The bibliography first lists those precursor articles, pre-dating 2007, and then lists articles, books, and textbooks that date from 2007 and that are relevant to the movement. The article also suggests ten sub-categories into which articles on Applied Legal Storytelling could fall and offers examples of each.

 

Book Reviews

Point Made: How to Write Like the Nation’s Top Advocates by Ross Guberman

Lauren L. Fontana, reviewer

 

Storytelling for Lawyers by Philip N. Meyer

Brian J. Foley, reviewer

 

The Sense of Style: The Thinking Person’s Guide to Writing in the 21st Century by Steven Pinker

Lisa Eichhorn, reviewer

 

Clear and Simple as the Truth: Writing Classic Prose by Francis-Noël Thomas & Mark Turner

Joan Ames Magat, reviewer

 

The Arts and Legal Academy: Beyond Text in Legal Education by Zenon Bankowski

Sue Liemer, reviewer

 

Tongue-Tied America: Reviving the Art of Verbal Persuasion by Robert N. Sayler and Molly Bishop Shadel

Kristen Murray, reviewer

 

What the Best Law Teachers Do by Michael Hunter Schwartz, Gerald F. Hess, and Sophie M. Sparrow

Melissa Weresh, reviewer