I am now blogging at Ruling Imagination: Law and Creativity

I am now blogging at Ruling Imagination: Art and Creativity. Ruling Imagination addresses primarily the ways law affects creative endeavors and the ways creativity informs the practice of law.

Slaughterhouse 1945

I've written of my dad before. His experience was identical to that Kurt Vonnegut relates in Slaughterhouse 1945 up to the point Vonnegut was shipped from Limberg to Dresden. My dad was shipped elsewhere.

Lawyers: don't count on the court filling in the holes you've left unfilled.

Another example of why lawyers play the most important part in litigation and how courts may well remain ignorant of material facts or legal arguments if the lawyers don't bring them up.

Award Winning Childrens' Stories

My sister, Amy Friedman, is a 2008 Parents' Choice Award winner for Tell Me A Story 2: Animal Magic. Animal Magic is the second CD of stories from the weekly column, Tell Me a Story, that Amy has written since the early '90s. The first was a 2006 Parents' Choice Award winner. An online archive of her stories dating back to 1999 is available here. Both CD's, in which accomplished actors tell stories selected from the hundreds Amy has written, to the accompaniment of original music, are available here. If you have kids, you want these stories.

The Supremes speak about legal writing.

From Law.com:

They are raw and unvarnished, like what might happen if you turned a videocam on yourself in your garage and started talking.

But the collection of videos on LawProse.org were shot at the Supreme Court and they star eight of the nine justices speaking passionately, sarcastically, angrily, into the camera as they answer questions about brief writing, oral advocacy and their own love-hate relationships with the written word.

Their interviewer, legal writing guru Bryan Garner, quietly posted the eight videos on the Web site in January. Garner has interviewed dozens of judges, lawyers and writers over the years, seeking video clips for use in his profitable legal writing seminars. But he realized the interviews with the justices, conducted a year ago or more, were a unique treasure that he should not profit from, so he put them up without restriction, editing, fee or fanfare.

Lawyers: your job is to make the judge's job easy!

One point that is very difficult to get across to my students is that lawyers, even more than judges, are the driving forces behind the development of case law. Arguments not made are arguments a court often won't address, sometimes because the lawyer's failure means the arguments do not come to the court's attention. The lawyer's job in litigation is to give to the judge the tools, the arguments, that allow the judge to rule in favor of the lawyer's client. I suppose one reason for the difficulty in getting this point across is the focus of the law school curriculum on judges' opinions, as if the judges are the source of the justifications for the opinions, not the lawyers. But it is plain too that judges want to be able to rely on lawyers to do the best possible job of advancing their clients' positions and are less than happy when they have failed to do so. This judicial attitude is made plain in an opinion by Judge Lewis Kaplan in a case not unconnected to my students latest project, Bridgeman Art Library, Ltd. v. Corel Corp., 36 F. Supp2d 191 (S.D.N.Y. 1999)(emphasis added;citations omitted;hyperlinks added):

On November 13, 1998, this Court granted defendant's motion for summary judgment dismissing plaintiff's copyright infringement claim on the alternative grounds that the allegedly infringed works -- color transparencies of paintings which themselves are in the public domain -- were not original and therefore not permissible subjects of valid copyright and, in any case, were not infringed.It applied United Kingdom law in determining whether plaintiff's transparencies were copyrightable. The Court noted, however, that it would have reached the same result under United States law.

Following the entry of final judgment, the Court was bombarded with additional submissions. On November 23, 1998, plaintiff moved for reargument and reconsideration, arguing that the Court erred on the issue of originality. It asserted that the Court had ignored the Register of Copyright's issuance of a certificate of registration for one of plaintiff's transparencies, which it takes as establishing copyrightability, and that the Court had misconstrued British copyright law in that it failed to follow Graves' Case, which was decided in the Court of Queens Bench in 1869. At about the same time, the Court received an unsolicited letter from Professor William Patry, author of a copyright law treatise, which argued that the Court erred in applying the law of the United Kingdom to the issue of copyrightability. Plaintiff then moved for an order permitting the filing of an amicus brief by one of its associates, The Wallace Collection, to address the United Kingdom law issue. The Court granted leave for the submission of the amicus brief and invited the parties to respond to Professor Patry's letter. The matter now is ripe for decision.

Everything plaintiff has submitted on this motion should have been before the Court earlier, which is more than sufficient reason to deny its motion as an unwarranted imposition on the Court and, indeed, its adversary.

What is Fair Use? http://whatisfairuse.blogspot.com/

In my current Legal Analysis & Writing course the students are writing cross-motions for summary judgment in a case concerning copyright and fair use. To further their efforts, we are maintaining a blog, What is Fair Use?, on the issues raised by the dispute in the case.

Creativity is making the complicated simple.

"Making the simple complicated is commonplace; making the complicated simple, awesomely simple, that's creativity."

-- Charles Mingus

Joseph Williams, a man of clarity and grace, has died.

Joseph M. Williams, the author of the classic Style: Ten Lessons in Clarity and Grace, has died. It is a huge loss to anyone concerned with writing, not to mention the many who knew and loved him. I did not have the good fortune to ever meet him or hear him speak, but he is revered in the community of writing teachers. The ten lessons discussed in his book are:

Write with readers in mind
Write clearly
Write concretely
Write in an active mode
Put the subject at start of sentence
Put rhetoric at end of sentence
Edit, edit, edit; and cut, cut, cut
Get the verb in the main clause
Create structure
Write ethically

Platonists v. Sophists, the battle never ends

I had a frustrating online debate several months ago with a professor at another school who believes law schools should rid themselves of legal writing programs and clinics, as well as anything else that resembled the teaching of actual legal practice. Our disagreement boiled down to what I consider an erroneous, yet common, belief among "doctrinal" law faculty that they teach "analysis" while we legal writing professors merely teach "skills." In "Philosophy v. Rhetoric in Legal Education: Understanding the Schism Between Doctrinal and Legal Writing Faculty," Kristen Konrad Robbins, Professor of Legal Research and Writing, Georgetown University Law Center, does a far better job than I did at explaining that legal writing is as much about analysis as someone teaching contracts, constitutional law, or any of the other casebook courses:

We teach a complex and sophisticated art form that combines the acquisition of knowledge�the law itself�and its application�persuasive technique. In researching and writing a memo or brief, students find and synthesize controlling law to invent the major premises for their conclusions. In applying these premises to the facts of their case, students often engage in analogy and distinction, using the facts and policies of case decisions to predict or argue for a certain outcome. At the same time, students must anticipate their audiences' needs in the way they construct documents, frame issues, characterize facts, reason, and cite to authority. They must first suppress some of their writing instincts in order to learn the discourse of the legal community and, once they assimilate it, draw again on their own creativity.

Free Supreme Court and U.S. Courts of Appeal decisions now available online.

From the Connecticut Law Tribune: "This week, Carl Malamud invites you to enhance your federal case law library by downloading millions of pages of decisions stretching back more than 250 years, all free of charge. His latest online "public works" project is a Web site, public.resource.org, which will open up all Supreme Court opinions dating back to the 1700s and all U.S. appeals courts decisions dating back to 1950. The activist's efforts for the nonprofit group present a potential challenge to paid legal research services Thomson and LexisNexis."

The proper use of case law in brief writing.

Today's rant to my students about the proper use of case law in brief writing:

Precedents are, first, illustrations of the ways the rules have been applied by courts to reach the conclusion you advocate. Thus, the most important thing about a precedent is, first, its facts and its result. Then, you can explain why that result makes sense. Those explanations can come from the case, from another source, or even from your own brain! The important thing about any explanation is this: is it a persuasive explanation?
Then you apply that reasoning to explain why the result you are advocating in your case makes sense. That application extends the reasoning supporting the precedent to your case. The extension of that reasoning may be by analogy. It may be by explaining how the public policy supporting the precedent also applies to the situation in your case. It may be by explaining how the morality underlying the precedent applies in your case. It may be by explaining how economic efficiency rationales supporting the precedent apply in your case. Or it may be simply by explaining how common sense explains the result in the precedent and in your case. There may be several explanations. Again, the most important thing about the explanations is this: do they persuade?

Open every brief with who you are, what you want, and why you should get it.

I always write motion briefs with an opening that states who the motion is filed on behalf of, what exactly the client is asking the court to do, and, briefly, why the court should grant that relief. Wayne Scheiss and I are, again, on the same page.

Proofread, proofread, proofread

Raymond Ward, a New Orleans lawyer who blogs on legal writing (among other things), brings home the truth of proofreading: "If you've read and re-read that brief so many times that you're sick of it, it probably needs one more painstaking proofreading before it's ready to file." He describes his final read through of an appellate brief he thought was already in good shape. He found 71 errors that needed correcting.

Disgust at journalistic lies

This is a farce, a purported piece of journalism that is nothing but fiction, including every "and" and "the." Inasmuch it's purportedly about the city in which I grew up and in which I live now, I would know. "Shaker Heights was the perfect storm: poor folks, unemployed and a desire to get a piece of the American Dream"? Who is Breitbart.com, and why is it publishing such outlandish lies? And what is it with people who will believe anything they read on the internet as long as it confirms what they already feel? Oh, I see: Matt Drudge linked to the Breitbart story. If Drudge linked to it, it must be true, right?

Be very careful about which stories you believe.

The KISS principle and legal writing.

Mark Cooney has a terrific piece on legal writing in the December 2007 issue of the ABA's Student Lawyer. He writes: :"Here's my message to all law students learning the craft of legal writing: To be the most effective legal writer you can be, start doing the opposite of what you think will impress legal professionals�and the sooner the better." His list of things to do, which I don't think I could improve upon:

To sound smart, make it simple.

To impress readers, use ordinary words.

To prove you're a hard worker, make it shorter.

To argue most persuasively, don't argue.

Don't save conclusions for the conclusion.

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