WRITING GUIDANCE FOR LAW STUDENTS AND LAWYERS
This is an occasionally-updated summary of prescriptions and recommendations for law students who write long papers in Professor Madison’s courses at the University of Pittsburgh. In any other context, use it with appropriate caution.
Introduction and Summary
A long piece of legal writing (any piece of legal writing or other communication, really) is an exercise in persuasion. The author should develop an argument or point of view — a claim, let us say, and persuade the reader that the author’s claim is correct.
A “claim” in this context means that the author should identify an issue or a problem that needs to be addressed. The author should state what that issue or problem is. The author should explain the author’s perspective, that is, how the author proposes to view the issue or solve the problem. Using that perspective, the author should solve the problem, or at least address the issue. The author should defend the perspective and solution against possible challenges.
In the best of all worlds, the entire paper is based on and can be summarized in a thesis, which is the point that the author wants to make. In the best of all worlds, the author can and does state that thesis in one or two sentences, A paragraph at most.
One sentence does not a paper make. The author should use the length of the paper to explain not only what the thesis is but also where the thesis comes from, how the thesis is justified, proved, or demonstrated, and where the thesis goes. Why the thesis matters, in short. The paper should explain the background of the problem, demonstrate why the problem is worth solving, describe how others have addressed the problem (if it has been addressed before), and explain in some detail both how the author solves the problem and why the author’s solution is superior to any other suggested to date.
Advocacy and persuasion mean different things in different contexts. In this context, remember that an independent study or seminar paper is a work of scholarship, not a brief. The major goal of the paper is to demonstrate the author’s ability to master a body of material (both primary and secondary sources), to understand the doctrinal and policy aspects of that material, and to apply that material when analyzing some unresolved or unaddressed problem of law and/or policy. The paper succeeds if it persuades the reader (me) that the author possesses those skills.
In other words, the paper is a sizable step beyond the legal research memo and the moot court brief that students usually prepare during their first year. Those projects call for mastery of some legal issue and advocacy for a particular client. The research paper requires mastery of the material, an awareness of its nuances and implications, and extension of the material in addressing some problem that exists apart from a particular individual or firm or (even) government.
Start with the End
Starting a research paper means beginning with the end. In identifying, advancing, and defending a claim, the first task is figuring out where you are planning to go. That destination, in a nutshell, is the thesis.
It’s rare to have the thesis in hand before completing some substantial amount of research. It’s rare to know the answer to the question “how should the paper be organized?” until some research is in hand. This is partly to assure that the thesis has not previously been argued (the dreaded “preemption,” which is relatively easy to avoid), and partly to assure that thesis, even if novel, is appropriately tailored to the scope of a research paper.
The thesis provides the paper’s anchor and its organizing principle. A thesis should not be in the form, “This paper considers the issues surrounding X.” Often, a good thesis can be stated–and should be stated–in a single sentence. It is a good idea to include that statement in the introduction to the paper, and to repeat it from time to time (varying its details depending on context) throughout the paper. Beware of elaborate introductions and conclusions. Don’t waste space at the beginning of the paper giving an overly-detailed explanation of the problem and its background. Summarize the essential elements. Detail can be added in footnotes or (better) on the body of the analysis and argument.
Pause here to absorb the importance of having a clearly worked out thesis. Clarity can be extraordinarily difficult. Identifying your thesis, and understanding how to communicate that thesis briefly, is often the hardest part of the writing process. The thesis is so important that this page reiterates the point several times! Know what you want to say!
Expect that 25% to 30% of the finished product will be explanation and summary of the issues and existing resources that bear on those issues. Expect that 70% to 75% of the finished product will be the author’s own analysis and proposed resolution, both supported by appropriate research, and responses to what the author considers to be serious criticisms of the paper’s argument.
Selecting a Topic and Getting to a Thesis
Selecting a topic for a paper can be a daunting task. You can derive ideas for papers by reading news reports regarding pending legislation or key recent cases. Listen carefully during class and read carefully in preparation for class for references to unresolved issues in the law. Papers need not identify or solve all of the problems in a given area of the law.
What can you write about? You may write about a narrow point of law, an interpretive technique, or a broad question of public policy. The thesis may be that a Court of Appeals has wrongly applied a slice of the Copyright Act or that patent law is headed for hell in a handbasket. The success of a paper doesn’t depend on the breadth of the issue that it addresses, although more narrowly focused papers are typically more successful. Its success depends on how persuasively the author explains and defends a point of view.
A perfectly good paper (again, often the very best papers) may pick up on a relatively small aspect of a larger concern and explain the importance of that aspect. A good paper may cover ground already addressed by another author, if the new author believes that prior work took an incorrect approach to the problem or overlooked some important issue. Looking at an old problem in a new light may be the basis for a good paper. Papers that apply methods and insights from other fields (economics, psychology, history, or sociology, for example) can be quite interesting and useful, but they are often challenging to research and write. Case notes–papers that simply analyze single opinions–are discouraged, unless the court’s opinion is used to frame some broader issue in law or public policy.
In short, write a paper that has something to say.
Do not write a paper that is “about” something.
Students interested in writing an Independent Study papers under Professor Madison’s supervision are expected to make substantial progress toward identifying a topic before asking about his supervising the work.
Researching the Paper
If you can’t come up with a thesis until after completing some research, where do you start? And how much research is necessary?
Answers to both questions depend on the general topic.
Where to start? A recent legal development (technology development, cultural development, economic or business development) is often a tempting starting point, but beware. Timeliness is often an invitation to explore fads rather than important questions. Similarly, Similarly, “circuit splits,” long the recommended starting points for notes for student journals, often are dead ends for student papers, partly because so much law reform in intellectual property and technology law happens in other fora (legislatures, agencies, international organizations) and partly because full-time law faculty often have anticipated and explored judicial opinions at length in their own scholarship. The most important consideration may be picking a theme that will hold your attention for at least a full semester. A long research paper will take up residence in part of your brain. You want it to be a welcome guest.
How much research is needed? At the least, the author should demonstrate a command of all relevant primary sources (cases, statutes, regulations, treaties) as well as significant secondary sources (books, law review articles, appropriate newspaper and journal material, and–where relevant, and even then usually only in modest doses–material from the Internet).
Generally, and with a lot of exceptions, usually the best way to start researching an unfamiliar topic is via general subject matter searches: treatises, for legal content; and news-related databases and historical overviews for information about factual contexts that are both broad (markets, organizations) and narrow (specific parties, courts, lawyers). Generally, again, from broad beginnings move to more specific sources. Start with “legal” sources (primary sources such as treaties, judicial opinions, and statutes) and secondary sources such as treatises and law journal articles. But never overlook the possibility that there is useful and important material to be found in primary sources of other sorts (for example, government or research data) and secondary material (journal literature, monographs) from outside of law.
Since a major goal of writing a paper is mastery of the techniques of argument and scholarship, I cannot emphasize enough that authors should familiarize themselves with the perils of relying on secondary (and sometimes even primary) sources that are only available on the World Wide Web. Google Books and Google Scholar can be great gateways to sources. Wikipedia can show you the way to good information. But never stop with either one.
Who is the relevant audience for the paper? Papers should be written for an audience that is informed generally about intellectual property law but is not expert on the question being addressed. Imagine a well-written paper being submitted for publication in an intellectual property law journal. The note below on sources and citation addresses a related question.
Make it Look Marvelous (Style Matters)
The thesis and the supporting arguments do not exhaust what is expected from a good paper. Style and logic count. Form and format count. Spellcheck and proofread each and every draft of the paper that you turn in. Never, ever turn in any piece of written work–even an early outline of the paper–that is anything less than your absolutely best effort. Your work will be graded accordingly.
All of the above will take longer that you think. Plan accordingly, working backward from relevant deadlines.
Form, Format, and Deadline
Seminar papers and independent study papers written under my supervision must be a minimum of thirty (30) and a maximum of fifty (40) pages long, double-spaced, including footnotes.
Margins should be not greater than 1″ on all sides; font size for text and footnotes should be not greater than 12-point type using Times New Roman font, or its equivalent, proportionally spaced. Text should be double-spaced. Footnotes should be single-spaced.
All citations should represent the author’s best effort to comply with Bluebook form. But Bluebooking is a means to an end, not an end in itself. Very few people the world, including very few courts, expect lawyers to know and to be able to use the Bluebook or its free equivalent, the Indigo Book. In this as in many respects of professional life, well-programmed software deals with the details, even if some legal writing faculty and some Law Review editors make a big deal about Bluebooking. In the real world, other things matter much more. The name of the game is, in fact, clarity and consistency. The purpose of citing sources is communicating to your audience. For citations and references, therefore, make your best effort in ensuring that your sources are clearly identified, and that you make consistent use of whatever format you choose to ensure that.
As a general rule, not more than 1/3 of the overall length of the paper should be devoted to describing the background and contours of the problem or issue that the paper addresses. Roughly 2/3 of the overall length of the paper should be devoted to your analysis of that problem.
I require that students turn in what amount to four (4) versions of their papers. In reverse order, these are (4) a final version; (3) a full-dress draft (a version of the paper that is substantially complete, including all footnotes); (2) a thorough outline; and (1) a short summary, together with a literature search. Requirements for each version follow.
The short summary: This is due approximately two weeks after the start of the semester. I may require that the short summary be redone, if it does not demonstrate sufficient research and thought to that point. This is a one- to two-page narrative summary of the paper topic, the author’s anticipated research, and the author’s anticipated argument. Neither footnotes nor sources are required at this stage. The purpose of this summary is to ensure that the author is following a well thought-out strategy. A subsidiary purpose is to examine the author’s skill at assembling and writing a very short, very efficient paper.
Writing counts, in addition to substance, as it does at all stages of the project. Along with the short summary, the author must turn in the results of a literature search on the topic. This should consist of the results of a search on Westlaw or Lexis/Nexis, and/or by hand, for scholarship that bears on the proposed topic. (That may include legal scholarship and scholarship from other fields.) Simply printing out the result of a computerized search is not acceptable. The author must have reviewed the sources and identified those (a minimum of five journal sources, and/or monographs — not treatises) that are most relevant to the paper. Including those sources in the literature search amounts to a representation that those sources will be cited and discussed, thoughtfully, in the final paper. The final paper will be graded accordingly.
The outline: Due approximately five weeks after the start of the semester, the outline should be a detailed four- to six-page exposition of the argument of the paper, including each issue that the author plans to address. Each section and subsection should be clearly defined and preceded by complete topic sentences, not single word or phrase bullet points. Each topic sentence should be set forth and supported by subsidiary sentences. In other words, the outline must consist of complete sentences, not abbreviations or shorthand.
The outline must include a thesis statement. A complete bibliography (list of all of the author’s sources, with full citations) must be attached to the outline. It is expected that the sources listed in the literature search will be included in this bibliography, but also that this bibliography will be more complete that the literature search that accompanied the short summary. Again, it is expected that in the final paper, the author will make substantial use of the sources listed in the bibliography, and the final paper will be graded accordingly.
Because following these instructions and producing the outline often confounds students who have not yet learned the discipline and uses of outlining, here are some additional specific suggestions for producing an outline in the expected form.
The full-dress draft: Due approximately nine weeks after the start of the semester, the full-dress draft amounts to a complete version of the paper. All footnotes must be complete. The paper must be properly proof-read and presented in a professional format. This draft must represent the author’s absolutely best effort to that date.
The final version: Due on the last day of the exam period, by 12 noon that day, the final version must demonstrate that the author has made a substantial effort to revise and perfect the full-dress draft, taking my comments into account. Students should anticipate that they will be asked to make substantial revisions to the full-dress draft of the paper, and perhaps to re-write the entire project, in response to my comments.
All summaries, outlines, drafts and final versions must be turned in to either via email, as attachments, or via a TWEN drop box, if one is specified in the course syllabus.
No extensions from due dates specified on the course syllabus will be granted, except in the case of family emergency, substantial illness, or in consultation with the Vice Dean or a relevant Associate Dean.
Grading will follow the following guidelines: the short summary is graded on a pass/fail basis. The outline counts for 25% of the final grade. The full-dress draft counts for 45% of the final grade. The final version of the paper counts for 30% of the final grade.
The final grade may be adjusted upward or downward based on the depth of the student’s efforts to revise the full-dress draft of the paper in light of my comments. Seminar grades may also be adjusted upward or downward based on the quality of the student’s classroom performance and paper presentation, if any.
Resources for Student Writers
Substantive guidance for writers and editors of legal scholarship can be difficult for students to find. The following is a short list of the material that I find most helpful.
Professor David Post of Temple Law School has a page of thoughtful advice on writing legal scholarship. Professor Post’s advice is extremely helpful and in many respects expands in more detail on themes touched on above. Professor Post’s page is here. Professor Michael Froomkin of the University of Miami School of Law also has a good and useful page of advice. The author Cory Doctorow distills some advice into a simple proposition that I paraphrase as follows: After writing out a first draft, and as a first revision, try cutting out the first 10 percent of the paper. That’s most likely to be the “throat clearing” (least useful) material. Next, move the last 30 percent of the article–the substance of your conclusion, or the payoff–to the beginning. This works a lot of the time, though not all of the time.
- E.B. White and William Strunk, Jr., The Elements of Style (4th ed. 1999). A quick read. Use carefully; much of its style advice should be regarded as guidelines, at best, rather than as hard and fast rules.
- William Zinsser, On Writing Well (now available in many editions). A personal favorite.
- Richard Wydick, Plain English for Lawyers (4th ed. 1998). A legal classic.
- Bryan Garner, The Elements of Legal Style (1991). In the style of Strunk and White.
- Bryan Garner, A Dictionary of Modern Legal Usage (1998). For legal writers, Garner is more useful than Black’s Law Dictionary or Fowler’s Modern English Usage. [Garner’s “The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Court” (1999) has been well-reviewed, but I haven’t read it, and it is very expensive.]
- Eugene Volokh, Academic Legal Writing (2003)
- Elizabeth Fajans and Mary R. Falk, Scholarly Writing for Law Students: Seminar Papers, Law Review Notes and Law Review Competition Papers (1996)
- David Mellinkoff, The Language of the Law (1963). This is more of intellectual interest than of practical use, but it is a fascinating and still relevant book for students of language.
Articles and Essays
- George Orwell, Politics and the English Language (in A Collection of Essays (1954))
- Pamela Samuelson, Good Legal Writing: Of Orwell and Window Panes, 46 U. Pitt. L. Rev. 149 (1984)
- Doug Litowitz, Legal Writing: Its Nature, Limits and Dangers, 49 Mercer L. Rev. 709 (1998)
Read good, clean non-fiction to get a feel for styles that you would like to emulate. My personal favorites include John McPhee (mostly natural history); Jill Lepore and Elizabeth Kolbert (contemporary public policy); Tracy Kidder and Gary Kinder (book-length reporting, or “reportage”); Calvin Trillin (humor); Danial Boorstin, David McCullough, Jonathan Spence, and Edmund Morgan (history); Grant Gilmore and Lawrence Friedman (law); and Roger Penrose and Douglas Hofstadter (science). My fiction favorites–styles that lawyers should emulate only with expert supervision!–include Douglas Adams, Jorge Luis Borges, and Neal Stephenson.
On Sources and Citation
Every discipline has its own standards regarding citation and attribution, though all start with a common, core prohibition: Do not plagiarize. Do not represent someone else’s work as your own. Law imposes particularly exacting requirements regarding ethical conduct in scholarship. In legal writing, as elsewhere, avoiding plagiarism requires including appropriate citations to all material on which a paper relies and/or which it excerpts in any way. It also requires not using any text authored by another, without enclosing that text in quotation marks or otherwise distinguishing it as a block quotation.
A second rule for legal authors, and one that is more difficult to apply in practice, is to include citations to supporting authority for any and all statements of fact that are not “blindingly obvious” to even a casual observer of the relevant field. If the paper makes a statement of fact, and that fact is not “blindingly obvious,” then that statement should be footnoted, and the footnote should contain appropriate supporting authority.
Rules for legal citation are, to say the least, more complex than the simple prohibition on plagiarism and a simple directive to footnote appropriately. The Blue Book, A Uniform System of Citation, is accessible here. An introduction to basic citation principles is online here.
The following resources are directed at helping student writers avoid plagiarism.
On Giving Talks and Making Presentations
For students and others interested in learning more about how to give effective presentations, I have only the briefest advice, though it aligns closely with my advice for writing papers:
One: Know what you want to say.
This can be trickier than it sounds.
Two: Organize your talk in advance.
Again, this is more difficult than it seems. It requires really mastering your material. Never, ever, read from a script, unless you are a graduate student in the humanities. Delivery counts; a presentation is, yes, is kind of performance. But a presentation is not a recital; it should be, and should feel, mostly extemporaneous. Unless, again, you are a graduate student in the humanities. If you use slides, then banish bullet points from them, and do not ever recite what appears on the screen.
Three: Practice, practice, practice!
Here are some resources on presentations that are available on the Internet. Because they are not geared for legal speakers or audiences, they may be both more useful and less useful than they seem.
- Presentation Zen: Cool slides, cooler talks
- Oral presentation advice from a computer science professor
- More advice from the computer science field
- Computer scientists are either very good or very poor presenters. They share a lot of advice.
- Here’s more
- Some advice from a linguist
- On public speaking generally
- Guidelines for giving a truly terrible talk