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Volume 11 ______2005 Legal Writing The Journal of the Legal Writing Institute VOLUME 11 ____________________________________________ 2005 IN MEMORIAM ....................................................................... vii THE GOLDEN PEN AWARD Remarks—Acceptance of Golden Pen Award ..................................... Richard Wydick xi ARTICLES Scholarship by Legal Writing Professors: New Voices in the Legal Academy (with Bibliography) ..................................... Terrill Pollman 3 Linda H. Edwards The Legal Writing Institute The Beginning: Extraordinary Vision, Extraordinary Accomplishment ............ Mary S. Lawrence 213 Expanding Our Classroom Walls: Enhancing Teaching and Learning through Technology .................................. Kristin B. Gerdy 263 Jane H. Wise Alison Craig Is the Sky Falling? Ruminations on Incoming Law Student Preparedness (and Implications for the Profession) in the Wake of Recent National and Other Reports ............................... Cathaleen A. Roach 295 Taking the Road Less Traveled: Why Practical Scholarship Makes Sense for the Legal Writing Professor ........... Mitchell Nathanson 329 iv Unusual Citings: Some Thoughts on Legal Scholarship ................................ Colin P.A. Jones 377 SONGS A Song Commemorating the 20th Anniversary of the LWI, and Celebrating Its Move from Seattle University School of Law to Mercer University School of Law ......................... David S. Caudill 393 “Stuck in the Middle with You” ..................... Terri LeClercq 395 v REMARKS—ACCEPTANCE OF GOLDEN PEN AWARD Richard Wydick Ladies and Gentlemen, thank you for this handsome golden pen. It is a great pleasure to be here, to see some old friends, and to make some new friends. My book, Plain English for Lawyers, was originally an article in the 1978 volume of the California Law Review. After it ap- peared, I got a phone call from Keith Sipe, who was starting a new publishing house called Carolina Academic Press. He asked if I’d be interested in having the article published as a little book. I said sure! Thanks to Keith and his colleagues, the little book is in its fourth edition. Now that I have a proper pen, I=m going to prepare a fifth edition that will contain all new exercises. In due course, I hope some of you will try out the fifth edition on your students. What room are we meeting in tonight? Yes, the Corinthia Room! And who remembers the name of the founder and first king of Corinth? Nobody remembers? It was Sisyphus. We who try to teach law students how to write in plain language have a frustrat- ing task, much like the one assigned to Sisyphus. Sisyphus was a cunning fellow who angered the gods, especially Hades, the god of the underworld. When Sisyphus died, Hades assigned him to push a huge boulder up a hill in Hell. Every time Sisyphus gets the boulder to the top, it breaks loose and rolls back down again. And Sisyphus must start all over, for all eternity. Why is our task like the one assigned to Sisyphus? How many of you have had a former student come back to the school and tell you, You know, professor, when I went to work in a law office, I tried to write the way you taught us, using plain language. But my boss told me that real lawyers don’t write that way. Real law- yers use said instead of the or those because said is more pre- cise. Real lawyers prefer the passive voice, because it sounds of- ficial or because it sounds indirect and gentle. Real lawyers use long, long sentences, because they write about very complicat- ed, technical things that cannot be expressed in short sentenc- es. © 2005, Richard Wydick. All rights reserved. xii The Journal of the Legal Writing Institute [11 So your former student has capitulated to the boss and now writes like a “real” lawyer. The boulder has rolled back down the hill. Why do our students capitulate to the boss so easily about le- gal writing style? They aren’t so spineless about issues of substan- tive law. They aren’t so spineless about issues of legal ethics. On those issues, they show some grit—but not about legal writing style. Where have we failed them? Perhaps we have not exposed them enough to the modern lit- erature on legal writing—the source books they could use in argu- ing their position to the boss. For example, suppose the boss in- sists that your former student use shall in drafting a contract, be- cause shall is traditional and has a precise legal meaning. Wouldn’t it be good if your former student knew about Joe Kim- ble’s article on The Many Misuses of Shall published in the Scribes Journal of Legal Writing.1 That article demonstrates that, far from being precise, shall is one of the most frequently litigated terms in our law. How could we give our students better exposure to the modern literature on legal writing? Here’s one suggestion: Go to your office shelves and gather up an armload of legal writing books and arti- cles that you regard as authoritative. Put them on reserve in the library. Then give your students an exercise in which their hypo- thetical boss demands that they commit a series of six, or ten, or twelve writing abominations, listing some of the ones that you have discussed in class. Ask the students to cite which of the books and articles on reserve they would use to convince the boss to re- pent and change his sinful ways. That exercise would accomplish three things. First, it would give the students a bit of citation prac- tice. Second, it would let them find their way through a good col- lection of source materials, so they will know where to find support for their arguments. Third, it would help them learn that the boss isn’t always right—and that’s an important lesson. When you leave tonight, please pick up one of the handouts beside the door. It’s a sample of the kind of legal writing we should all work to exterminate. The passage on the handout is part of a 2004 corporate merger agreement. Three of the Nation’s best- known law firms helped put that deal together. The passage con- tains one sentence, 451 words long. It contains some sub-parts, but they are not indented, so they don’t help the reader understand the structure of the sentence. I think the sentence says something 1 Joe Kimble, The Many Misuses of Shall, 3 Scribes J. Leg. Writing 61 (1992). 2005] Acceptance of Golden Pen Award xiii like this: “If your company backs out of this deal and later does a similar deal with somebody else, you will have to pay us so much money it will make your ears bleed.” I think the maximum is one billion, four hundred forty million dollars. I invite you to revise that passage. It won’t be easy because it’s complicated, and you have the disadvantage of seeing it out of con- text. But give it a try. As an incentive, I hereby offer a prize to the person who comes up with the best revision by January 31, 2005. The prize is three bottles of excellent California wine, to remind you of your rainy week in San Francisco. Thank you for the lovely pen and for the honor of being with you tonight. SCHOLARSHIP BY LEGAL WRITING PROFESSORS: NEW VOICES IN THE LEGAL ACADEMY Terrill Pollman Linda H. Edwards I have only one thing to fear in this enterprise; that isn’t to say too much or to say untruths; it’s rather not to say everything, and to silence truths.1 —Jean-Jacques Rousseau TABLE OF CONTENTS I. INTRODUCTION ................................................................................. 4 II. METHODOLOGY ................................................................................. 6 III. WHAT THE BIBLIOGRAPHY SHOWS ............................................. 8 IV. THE JUSTIFICATIONS FOR SCHOLARSHIP ............................... 14 V. WHAT IS A “LEGAL WRITING TOPIC”? ........................................ 18 A. Category One: The Substance or Doctrine of Legal Writing ......................................................................... 20 B. Category Two: The Theoretical Foundations of Legal Writing ......................................................................... 25 C. Category Three: The Theory and Practice Appropriate to the Teaching of Legal Writing ........................................... 27 Terrill Pollman is the Ralph Denton Professor of Law and Director of the Lawyering Process Program at the University of Nevada, Las Vegas William S. Boyd School of Law, and Linda Edwards is Professor of Law at Mercer University School of Law. We are grateful for insightful comments from Mary Beth Beazley, Ted Blumoff, Daisy Hurst Floyd, Lash LaRue, Hal Lewis, Richard Morgan, and Michael Smith, none of whom can be blamed for any inaccuracies or indiscretions we may have committed. We also are grateful for the in- valuable research assistance of Kim Degonia, Adriana Fralick, Jennifer Linebarger, and especially Jennifer Lloyd, who most recently spent countless hours on the project. The edi- torial assistance of Mary Beth Beazley, Brooke Bowman, Darby Dickerson, Judith Fisher, and Jim Levy has been superb, and we thank them. We thank each legal writing professor who responded to our telephone calls and e-mails. Finally, we appreciate the financial sup- port of our institutions and the less tangible but even more important support and encour- agement of our colleagues there. 1 Jean-Jacques Rousseau, The Confessions bk. 4, in The Collected Writings of Rous- seau vol. 5, 147 (Christopher Kelly et al. eds., Christopher Kelly trans., U. Press of New Eng. 1995) (quoted in Peter Brooks, Storytelling without Fear? Confession in Law and Lit- erature, in Law’s Stories: Narrative and Rhetoric in the Law 114, 114 (Peter Brooks & Paul Gewirtz eds., Yale U. Press 1996)). 4 The Journal of the Legal Writing Institute [Vol. 11 D. Category Four: The Institutional Choices Affecting the Teaching of Legal Writing ..................................................... 32 VI. RATIONALES USED TO DISCOUNT LEGAL WRITING TOPICS ............................................................................. 34 A. Myth #1: Legal Writing Topics Do Not Qualify as Scholarship ........................................................................ 35 B. Myth #2: Non-Legal Writing Faculty Members Do Not Know How to Evaluate Legal Writing Articles ...........................................................
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