David Sousa. How Brain Science Can Make You a Better Lawyer - At abanet.org

Writing academically, one adds scientific value. In legal writing, one best operates within the existing scientific achievements.

Differently from academic writing, legal writing is about composing legal and usually practical documents. The fact that formally legal documents are not academic papers, does not mean that they don’t or shouldn’t have connection with academic research. Still, legal writing is a distinct area and taught in universities as a separate discipline.

As legal writing is about drafting legal documents, such as actions, complaints, judicial opinions, draft judgments, decisions, etc., in addition to psychological motivation, like “It takes many good deeds to build a good reputation, and only one bad one to lose it,” the students are usually taught certain rules in legal writing classes, such as methodology for legal analysis, such as IRAC. What is IRAC? – This is a formula: Issue – Rule – Application - Conclusion in legal texts, around which structure the reasoning builds, i.e. it reduces legal reasoning to the application of a formula that helps organize the legal analysis. An argument for is that “an organized legal analysis is easier to follow and reduces errors in reasoning”. There exist also parallel systems, such as CRuPAC formula that consists of Conclusion – Rule – Proof - Application – Conclusion. The opponents of the IRAC system say that the system is too artificial.

But if used, inside the structure, one should use correctly linguistic rules, should know the rules of syllogistic reasoning, and the canons of interpretation (because already drafting a text one should be aware that the others start interpreting those texts, and presume that the texts correspond to certain rules, such as consistency, constitutionality, rationality, and purpose).

M. Sinclair (New York Law School) writes in „’Only a Sith Thinks Like That’: Llewellyn’s ‘Duelling Canons,’ Seventeen to Twenty“ about the Llewellin thesis: „To every canon of construction there was another to opposite effect“, and thereafter the article consists of Llewellyn’s assault on the legitimacy of canons. Llewellyn brings out pairs of canons, for example:

Pair 17

THRUST: “The same language used repeatedly in the same connection is presumed to bear the same meaning throughout the statute.”

PARRY: “This presumption will be disregarded where it is necessary to assign different meanings to make the statute consistent.”

Pair 18

THRUST: “Words are to be interpreted according to the proper grammatical effect of their arrangement within the statute.”

PARRY: “Rules of grammar will be disregarded where strict adherence would defeat purpose.“

Pair 19

THRUST: Exceptions not made cannot be read.

PARRY: The letter is only the “bark.” Whatever is within the reason of the law is within the law itself.

Pair 20

THRUST: Expression of one thing excludes another.

PARRY: The language may fairly comprehend many different cases where some only are expressly mentioned by way of example.

Example – I eat grapes and cranberries, but say that I only ate cranberries. Did I lie? No, what I said was true, but it was surely deceptive. In the jargon it would be called “infelicitous“.

Helen A. Anderson (University of Washington – School of Law) writes in „Insights from Clinical Teaching: Learning About Teaching Legal Writing from Working on Real Cases“ that people have to decide, for example, whether one should put first a plain argument, or a legal history argument, and that such arguments may not be alternatives, but one may be only „even if“ argument towards another. This means that usually one argument has the potential to undermine the other – yet the advocate wants to make both. She warns that the decisions, which argument to choose are strategic decisions and that the risk accompanies them.

She suggests that students should be taught how to write not: 

-          run-on sentences;

-          no road map or thesis paragraph;

-          very little citation to authority;

-          weak (equal protection) argument,

And she suggests some self-control questions to students:

● Are you convinced that this is really the law?

● What is not being addressed?

● What is bothering You?

● Does this make sense to You?

Douglas M. Coulson, in „Legal Writing and Disciplinary Knowledge-Building: A Comparative Study“ Journal of the Association of Legal Writing Directors Vol. 6, 2009 presents: 

MACDONALD’S CLASSIFICATION:

in two general categories:

● sentence subjects – phenomenal subjects, which consist of “the material that the researcher studies,”

● epistemic subjects, which consist of “the methods, conceptual tools, and previous research that the researcher brings to bear on that material.

Subdivision of the phenomenal category:

• Class 1 (“Particulars”) – specific people, places, or objects, usually named individuals;

• Class 2 (“Groups”) – generalized or grouped nouns;

• Class 3 (“Attributes”) – the attributes, properties, action, behaviour, or motivations and thoughts of the nouns in Classes 1 and 2;

• Class 4 (“Reasons”) – “all-purpose abstractions and words used in reasoning such as ‘reasons,’ ‘argument,’ ‘evidence,’ ‘significance,’ or ‘findings’ ”;

• Class 5 (“Research”) – scholars in the field, whether generalized or named;

• Class 6 (“Isms”) - schools of thought such as Marxism or Historicism; and

• Class 7 (“Audience”) – subjects like the generalized “we” and “one” or “you.”  (pp. 172-173)

SPECIAL TOPOI OF LITERARY ARGUMENT:

(1) “Appearance/reality,” in which a critic argues for a dualism in a literary text, “the perception of two entities: one more immediate, the other latent; one on the surface, the other deep; one obvious, the other the object of search”;

(2) “Ubiquity,” in which a critic claims to have found something in a literary text that no one else has seen, “and to find it everywhere”;

(3) “Paradox,” in which a critic seizes upon the “unification of apparently irreconcilable opposites in a single startling dualism”;

(4) “Contemptus mundi,” in which a critic assumes an aspect of “despair over the condition and course of modern society”;

(5) “Paradigm,” in which a critic elucidates a structure in a literary text that provides form to otherwise congruent verbal concepts, “a kind of template fitted over the details of a literary text to endow them with order”;

(6) “Social justice,” in which a critic seeks in an assumed connection between a literary text and the world certain avenues toward social justice through advocating social change;

(7) “Mistaken critic,” in which a critic argues that previous critics have repeatedly overlooked some aspect of a literary text; and

(8) “Context,” in which a critic presumes that previously overlooked historical details should be brought to bear on the interpretation of a literary text.“ (pp. 174-175)

In addition, some stylistic suggestions have been worked out, such as:

Julie A. Oseid (Associate Professor of Law, University of St. Thomas School of Law, Minneapolis, Minnesota) in „The Power of Brevity: Adopt Abraham Lincoln’s Habits“ reminds that Abraham Lincoln’s success was in his – „ability to express much with few words“. She refers that „Lincoln made the following observation about another lawyer: “He can compress the most words into the smallest ideas of any man I ever met“ (good arguments lost in the sea of irrelevance). Brevity, she explains, „encompasses more than simply using the shortest paragraphs, the least number of words, or words with single syllables. The goal of brevity should be clarity“, and „What judges really want is shorter, harder hitting briefs“.

As a suggestion for teaching law students, she proposes an exercise on editing one’s opponent’s brief, which could be cut by thirty percent without eliminating anything essential, but instead improving the brief’s persuasiveness“.

Lincoln has been characterized to law students as:

„The spare quality of Lincoln’s prose did not come naturally but was worked at“;

„Lincoln’s genius grew not from spontaneity but from hard, painstaking work with words“;

„Lincoln worked very hard to learn anything new, and he learned by reading“;

„[w]riting the brief is an essential step in understanding the case. The act of writing forces the writer to think about and develop the legal arguments, to notice strengths and weaknesses, and to craft an organized structure“;

„[people] are persuaded by a writer who includes enough so that the argument and facts are understandable but does not include anything that is not essential“;

„[Lincoln] also drew on his memory when writing and did not try to use novel language. He used each word carefully and precisely“.

 – Well – Isn’t one nation, one state, as strong as its models through whose lives and deeds the pupils and students are taught? I have thought of the success of the American lawyers, and have thought that maybe the Estonians could also find a strong example from past, with the help of which person’s life the law students could be taught.

Stephen E. Smith, „The Poetry of Persuasion: Early Literary Theory and Its Advice to Legal Writers“, Journal of the Association of Legal Writing Directors, Vol. 6, 2009, pp. 55-74, writes about the elements of good writing, starting with Aristotle and providing very specific stylistic advice, “calling things by their own special names and not by vague general ones“. At the same time, he advises orators to“[d]escribe a thing instead of naming it: do not say ‘circle’, but ‘surface which extends equally from the middle in every way”“ (p. 62), and explains the importance of Visual Imagery – the champions of Aristotle were graphic (i.e., made their hearers see things). Therefore, „it is standard advice to legal writers to use visual images“. (p. 63)

Smith also suggests the use of Figures of Speech – formal devices, and catalogs. (p. 65)

He writes that words should be carefully chosen, for there is „a reason for every word“ (p. 69). He further writes that „students use the thesaurus as they prepare their memos or briefs for class. It is an urge to make their writing more “interesting” or “sophisticated.” This is related to a lack of confidence in their easily accessed vocabulary, and a fear that their fellow students possess a better-developed lexicon“. (p. 69)

He also writes of stylistic variety, meaning that „To keep a judge’s attention through the course of a long brief, the tools used and strategies employed must be varied“. (p. 71)

At the same time he warns that stylistic strategies should be used in a measured way - The pursuit of art should never contravene the appearance of candor, clarity, and care“ (p. 73); artificial devices should not be overused (ibid.); bombast is one of the hardest things to avoid in writing“. (p. 74)

About style he writes that one should use a vivid image; and think that „extra moment about word choice“. (p. 74)

How does this play with the students in reality?

Mary R. Falk, „The Play of Those Who Have Not Yet Heard of Games”: Creativity, Compliance, and the “Good Enough” Law Teacher“. Journal of the Association of Legal Writing Directors Vol. 6, 2009:

1st YEAR tasks:

„Part of the assignment is to write a cover sheet in which students explain how they reached their decisions, and these are invariably thoughtful and deeply serious“. (p. 217)

„At least one assignment in the first year that involves a problem to which there is no clear answer and which engages students’ emotions as well as their intellect — for example, a discovery rule defence to a motion for dismissal of a medical malpractice claim on statute of limitations grounds“. (p. 217)

„A short scholarly writing exercise that would free the students to write expressively“. (p. 217)

UPPER CLASSES:

„at least one assignment that requires new ideas—a judicial opinion in a matter of first impression, a statute or regulations in an emerging area of the law, or a comment on a controversial decision“. (p.217)

„Practicums for substantive courses are another way that upper-class students can be encouraged to play with ideas“. (p. 217)

Example: „students play legislators and judges both — they draft a statute, regulations to implement their statute, and a judicial opinion resolving a dispute that the regulations give rise to. This type of practicum could be adapted for other substantive courses“. (p. 218)

Finally, a pedagogical remark from the same article:

„When only the teacher plays, it is often just entertainment, or cleverness, or showing off. When only the students are asked to play, the exercise may be infantilizing or humiliating“. (p. 218)