Teaching Students to Write Effective Paragraphs & Sentences

1. Teaching Students to Write Effective Paragraphs & Sentences The Pedagogy of Legal Writing for Legal Academics in Africa March 16, 2007 Professor Lisa Mazzie Hatlen Marquette University Law School Milwaukee, Wisconsin

2. “The difficult task, after one learns how to think like a lawyer, is relearning how to write like a human being.” Floyd Abrams

3. “As soon as I have some information to convey onto yourself, I will naturally do the same.” • “As soon as I receive new information, I will let you know.”

4. Teaching Students to Write Effective Paragraphs and Sentences • In order for students to write effectively: • they need to want to take the time and effort to work at it; • they need to know what effective writing is; • they need to practice writing.

5. For students to write effectively, they need to want to take the time and effort to work at it.

6. To get students to want to work at writing: • Give them empirical evidence that good writing is integral for their success as lawyers. • Remind them throughout the year that writing matters. • Quotes, articles, and cases • Show them good writing and express confidence that they, too, can produce good writing.

7. What Matters Most? In a 2005 survey of the Arizona bench and bar, respondents were asked to assess certain areas of legal knowledge and legal skills as “essential” or “very important”. Legal Knowledge • Civil Procedure? • Contracts? • Evidence? • Remedies? Legal Skills • Legal analysis and reasoning? • Written communication? • Drafting legal documents?

8. Writing Matters Most Legal Knowledge • Civil Procedure – 87% • Contracts – 80% • Evidence – 74% • Remedies - 68% Legal Skills • Legal analysis and reasoning – 96% • Written communication – 96% • Drafting legal documents – 92%

9. The law is “a literary profession”. • “The legal profession lives and breathes through the written word: letters, briefs, opinions, contracts, memoranda, and other products.” Moliterno & Lederer, Introduction to Law, Law Study, and the Lawyer’s Role (2d ed. 2004) 67

10. Patterson v. Cook County, 2005 WL 433321 at *5 “On a final note, the Court issues a comment on the quality of the briefing by the parties . . . . [T]he quality of the briefing is unacceptable – prolonging the [litigation] process further . . . . Each [party’s] brief [is] littered with typographical errors. Carelessness can have a dramatic impact on the claim . . . .The quality of work, from both parties, is worse than simply careless or sloppy. It is sanctionable.”

11. Universal Restoration Servs., Inc. v. Paul W. Davis Systems, Inc., 2002 WL 596380 at *7 “[T]he plaintiff’s brief is littered with spelling errors, grammatical sloppiness, and incorrect case citations . . . . ‘The brief was desultory in nature; in general a poorly written product with numerous typographical errors. It was obviously never edited by a caring professional. As a panel of judges already overburdened with cases and paper, we find it insulting to have to dutifully comb through a brief which even its author found little reason to give such attention. We condemn this type of shoddy professionalism.’” (quoting United States v. Devine, 787 F.2d 1086, 1089 (7th Cir. 1986))

12. For students to write effectively, they need to know what effective writing is.

13. Effective Paragraphs • An effective paragraph generally contains about five sentences: • The thesis sentence • Three or so supporting sentences • The concluding sentence 5

14. Effective Paragraphs A dog bite victim may be considered negligent in causing his own injuries when he behaves aggressively toward a dog, even if he did not intend his actions to be aggressive, and the dog bites him.In Nelson, the plaintiff approached the dog from behind and put his arms around the dog to move it; the dog turned and bit the plaintiff on the face.Nelson.The court held that the jury could reasonably find that the plaintiff was negligent, even though his actions were “not malicious or designed to antagonize the dog”.Id.In Hayes, the plaintiff shouted and stomped his feet at the dog; when the plaintiff turned away, the dog attacked the plaintiff.Hayes.The court upheld the jury’s finding that the plaintiff was 100% at fault for his own injuries.Id. 1 2 3 4 5

15. Effective Paragraphs • Effective paragraphs begin not with a topic sentence, but with a strong thesis sentence. • Compare . . . • Several Wisconsin cases have held that a firefighter cannot sue for injuries the firefighter receives while fighting a fire. Cites. • And . . . • The firefighters rule prohibits a firefighter from suing for injuries the firefighter received while fighting a fire. Cites.

16. Effective Paragraphs • Compare . . . • Cases have held that dog bite victims can be negligent. Cites. • And . . . • A dog bite victim may be considered negligent in causing his own injuries when he behaves aggressively toward a dog, even if he did not intend his actions to be aggressive, and the dog bites him. Cites.

17. Effective Paragraphs In other kinds of writing, writers often “dress up” their writing in order to impress the reader or, perhaps, the writer’s colleagues or superiors. New legal writers have this same tendency. But good legal writing professors refuse to accept this kind of writing from their students. Instead, these professors push their students to do the more difficult task of “dressing down” their writing so even complex ideas are expressed simply and clearly.

18. What is the best thesis sentence to tie the paragraph together? • Good legal writing (which is not an oxymoron) is hard to do. • Legal writers are smarter than other writers because they have to write about complex issues. • In good legal writing (which is not an oxymoron), the writer conveys her message in precise, concise language. • Legal writing is different from other kinds of writing.

19. Effective Paragraphs • Now we have something that is “tied” together. In good legal writing (which is not an oxymoron), the writer conveys her message in precise, concise language. In other kinds of writing, writers often “dress up” their writing in order to impress the reader or, perhaps, the writer’s colleagues or superiors. New legal writers have this same tendency. But good legal writing professors refuse to accept this kind of writing from their students. Instead, these professors push their students to do the more difficult task of “dressing down” their writing so even complex ideas are expressed simply and clearly.

20. Effective Paragraphs • Effective paragraphs contain sentences that are woven together with a unifying idea. It’s not the beads that make the necklace, but the string.

21. The State must then demonstrate that, at the time of the offense, the degree to which a person is intoxicated endangers himself or another person. Tex. Penal Code § 49.02 (2006). “The danger need not be immediate and a specific, identifiable danger need not be apparent to the arresting officer.” Padilla. In Padilla, the defendant was staggering drunk. Id. Additionally, the defendant was in a high crime area and vulnerable to criminal conduct by another person. Id. In Dickey, the defendant was found to be sleeping in his car while intoxicated. Dickey. In both cases, the courts found the defendants guilty of public intoxication. Padilla; Dickey.

22. The State must then demonstrate that, at the time of the offense, the degree to which a person is intoxicated endangers himself or another person. Tex. Penal Code § 49.02 (2006). “The danger need not be immediate and a specific, identifiable danger need not be apparent to the arresting officer.” Padilla. In Padilla, the defendant was staggering drunk. The court determined that Padilla was a danger to himself in that he could potentially fall and injure himself. Id. Additionally, the defendant was in a high crime area and vulnerable to criminal conduct by another person. Id. In Dickey, the defendant was found to be a danger to others even though he was sleeping in his car while intoxicated. Dickey. The court said that the defendant, upon wakening, could have decided to drive his companion and himself home, and this would be a danger to himself and others. Id. In neither case was there immediate danger to the defendant or to another person, but rather, there existed a potential danger to the defendant or to another person, and the court ruled that this potential danger was sufficient to find the respective defendants guilty of public intoxication. Padilla; Dickey.

23. Effective Sentences • Effective sentences • generally use active, not passive, voice. • contain parallel structure. • keep the subjects and verbs close together. • avoid an overabundance of nominalizations. • are clear and concise. • avoid long wind-up phrases.

24. Effective Sentences • Effective sentences generally use active, not passive, voice. • Example: • The law presumes that a man is the father of a child when he and the natural mother of the child are married at the time of the child’s birth. Wis. Stat. § 891.41(1)(a).

25. Effective Sentences • Effective sentences contain parallel structure. • A parallel sentence is one that repeats a grammatical pattern. • Words, phrases or clauses in a series should be of the same construction. Match nouns with nouns, verbs with verbs, etc.

26. Incorrect • It is likely that the court will hold that Mr. Lidelmine is entitled to the return of the engagement ring because it was a conditional gift; that the earring also was a conditional gift that must be returned to Ms. Wiers; and that the ruby ring was an absolute gift, entitling Ms. Wiers to keep it.

27. It is likely that the court will hold that • Mr. Lidelmine is entitled to the return of the engagement ring because it was a conditional gift; • the earring also was a conditional gift that must be returned to Ms. Wiers; and • the ruby ring was an absolute gift, entitling Ms. Wiers to keep it.

28. Correct • It is likely that a court will determine that the engagement ring was a conditional gift that must be returned to Mr. Lidelmine; that the diamond stud earring was a conditional gift that must be returned to Ms. Wiers; and that the ruby ring was an absolute gift that Ms. Wiers may keep.

29. It is likely that a court will determine that • the engagement ring was a conditional gift that must be returned to Mr. Lidelmine; • the diamond stud earring was a conditional gift that must be returned to Ms. Wiers; and • the ruby ring was an absolute gift that Ms. Wiers may keep.

30. Effective Sentences • Effective sentences keep the subjects and verbs close together. • Example: • The district manager authorized the contract. • Effective sentences avoid an overabundance of nominalizations. • TIP: look for words that end with “-ion”, “-ize”, “-ate”, “-ability”, “-ancy”, “-ence”, and “-ment” or words that begin with “de-” or “mis-”

31. Effective Sentences • Example - overabundance of nominalizations: • While satisfaction of only one of these six factors is necessary for the preclusion of the claim, the court, in making its determination under the firefighter’s rule, performs analysis under the fourth and sixth factors. Cite. • The section of the rule pertaining to prior agreements asserts that any extant agreements concerning ownership of conditional engagement gifts would negate the consideration of the rest of the rule. Cite.

32. Effective Sentences • Example – removing nominalizations and putting the action back into the verbs: • Although only one of these six factors is necessary to preclude the claim, when courts analyze the factors under the firefighter’s rule, they focus on the fourth and sixth factors. Cite. • If, however, the parties have agreed the donee could keep a conditional gift after the condition goes unfulfilled, the rest of the rule would not apply. Cite.

33. Effective Sentences • Effective sentences are clear and concise. • Example – not clear and concise: • High-quality learning environments are a necessary precondition for facilitation and enhancement of the ongoing learning process.* • Example – clear and concise: • Children need good schools if they are to learn properly.* *http://www.plainenglish.co.uk/translations.html

34. Effective Sentences • Example – not clear and concise: • More and more, the intractable problems in our society have one answer: broad-based intolerance of unacceptable conditions and a commitment by many to fix problems.* *Excerpt from writings by Harriet Miers, as noted in David Brooks, In Her Own Words, N.Y.Times, Oct. 13, 2005, at A27.

35. Effective Sentences • Effective sentences avoid long wind-up phrases. • Example: It is important to note that if even one of the six public policy factors apply, then there can be no liability. Cite. • Instead, eliminate the wind-up. • Example: If even one of the six public policy factors apply, then there can be no liability. Cite.

36. Effective Sentences • Effective sentences not only avoid wind-up phrases but also avoid being “front-loaded”. • Example – “front-loaded”: Subject to contributory negligence, which allows for an injured party to recover damages reduced in proportion to the injured party’s contributory negligence as long as the injured party’s negligence was not more than the negligence of the injuring party, cite, “the owner of a dog is liable for the full amount of damages caused by the dog injuring or causing injury to a person . . . .” Cite.

37. Effective Sentences • Instead, use two sentences. • Example: “[T]he owner of a dog is liable for the full amount of damages caused by the dog injuring or causing injury to a person . . . .” Cite. The dog owner’s liability is subject to contributory negligence, which requires an injured party’s damage recovery to be reduced in proportion to the injured party’s contributory negligence as long as the injured party’s negligence was not more than the negligence of the injuring party. Cite.

38. For students to write effectively, they need to practice writing.

39. And practice some more.

40. Practicing paragraphs: • Write a paragraph and several potential thesis sentences; let students choose the best one or write a better one. • Have students use colored pens or markers to draw a line through their paragraphs to find the unifying theme. Have them trade papers with a classmate to see if the classmate can find the unifying theme.

41. Practicing sentences: • Focus on one particular writing issue (nominalizations, passive voice, etc.) per week or spend one whole class on writing mechanics. • Pull sentences from students’ writing or make up your own. • Stuffed Sentences Exercise.

42. Lisa Mazzie Hatlen Assistant Professor of Legal Writing Marquette University Law School P.O. Box 1881 Milwaukee, WI, USA 53201-1881 1-414-288-5367 lisa.hatlen@marquette.edu Thank you!