Friends, I'm feeling your pain. As you are getting your feet wet in the world of legal writing, I am slogging (with already wet feet) towards accomplishing the biggest legal writing project I've ever tried. My Senior Seminar Paper, in its final state, will be between 30 and 50 pages. Right now it is at a couple pages of notes, a bunch of research, and a mind full of jumbled thoughts--thus the pain.
In my research for my particular topic, though, I read a book called "Arts of Power," discussing diplomacy in general. In the section on the skills of the diplomat, I could not help but see the parallel between diplomatic skills and the skills of legal writing. I thought I'd share those similarities with you.
"Ambassadors represent their chief of state and are empowered to speak authoritatively for their chief of government."
For your lawyer, this is important. For you, as a paralegal, it is especially important. Lawyers don't speak for themselves when they engage in legal writing--they must speak for the client. The lawyer is empowered to represent the client, and to speak authoritatively for that client, so the lawyer had better know what the client wants.
The paralegal must also speak for the client to be effective. What is even more important, though, is that the paralegal's writing must speak for the lawyer, too! The effective paralegal must have a solid grasp on the client's goals, and the lawyer's means to that goal.
The lawyer is the agent of the client, and the paralegal is the agent of the lawyer. As "Arts of Power" says, "The role of the agent requires the subordination of personal interests to those of the principal being represented."
"An agent must wield language with uncommon exactitude."
Even the slightest misstatement can wreak amazing havoc. Even worse, if you are unclear and give the wrong impression, the same thing can happen. Legal writing has to be both clear and accurate.
Even though the lawyer will actually sign the papers, these are often the job of the paralegal. If you draft the paper, you must do so with a full knowledge of the facts and the legal arguments that you are making. If you edit the paper, you must do so word by word, sentence by sentence, to verify that it is saying what you are trying to say. If you don't, you run the risk of major headaches later on.
"Diplomatic dialogue consists of exchanges of assessments, estimates, apprehension, preferences, options, intentions, commitments, reassurances, and verifications."
When I read these steps, I could not believe just how much they mirrored the legal process. From start to finish--from the initial asset check to determine whether a case is worth it, to the settlement negotiations or trial. The lawyer relies on the information from the paralegal to assess the case's value, estimate values, apprehend the opponents arguments, find the client's preferences, evaluate legal options, create plans and intentions, commit to a course of action, reassure the client and the opposing parties, and finally verify how everything will conclude.
The list could go on, but these nine steps are also vital in legal writing. Even as you begin your assignments, go through these steps consciously, from start to finish, and you will be well on your way.
Saturday, July 28, 2007
Wednesday, July 25, 2007
America's Pastime, 1040 Style. (Posted by Gabe)
Every once in a while, friends, it can be quite a trip to step back and view old favorites through a novel lens. Take baseball, for instance. When was the last time that you thought about baseball in terms of income tax ramifications?
Ah yes, it is the stuff of final exams. And it's got the folks over at the WSJ Law Blog wondering how it will all turn out.
Tax Law Final Exam Question: Barry Bonds's Ball
Based on your studies this semester, what are your thoughts?
Ah yes, it is the stuff of final exams. And it's got the folks over at the WSJ Law Blog wondering how it will all turn out.
Tax Law Final Exam Question: Barry Bonds's Ball
Based on your studies this semester, what are your thoughts?
Monday, July 23, 2007
Ethics- Lessons 1-5 (Posted by Steven)
Alrighty. I shall attempt to break down ethics in this blog for you. Unfortunately, I did not have the foresight to obtain my textbooks out of storage this weekend (they are out of town) so I am working off the syllabus. I had forgotten exactly how little information was contained in it. However, with this course, hopefully you all should have the smarts to figure it out. It is pretty much common sense; however, the number one rule of life is "People Are Stupid." Unfortunate, yes, but due to this fact, the government was compelled to create a list of do's and do-not's to regulate attorneys and paralegals just to make your life difficult. Now, in lesson one, you learned that the government does not directly regulate paralegals. BUT, your supervising attorney (or general supervisor if you do not work in the legal industry) can and will be held responsible for your breach of conduct. This is an excellent incentive for you to do the correct and moral thing in your line of work. Most of the work in this course is contained in the textbook, under the Model RULES. These Rules are fairly straight-forward, so I suggest that you go through it and create an outline in a notebook with the main points. You all are pretty smart from what I hear, so hopefully you can take one phrase from the main points and soliloquize about them at length. I cannot stress how much this will bring together the rest of the course.
Now, about 75% of ethics can be summed up in one phrase: "Keep your stupid mouth shut." Yes, you are given permission to substitute any appropriate French adjective in place of "stupid." In any scenario, if you see someone blabbing off at the mouth, it should automatically scream "ETHICS BREACH!!!" in your mind. Plus, it helps that you will have a separate exam for this course, so you will know that you are looking for one. Do NOT discuss your cases outside the office; do NOT "share information" with a third-party regarding any case; do NOT speak with someone regarding a case, even a co-professional, without your supervisor's permission. Just keep...your...mouth...shut. If you do that, you have nothing to worry about.
In a breach of ethics, corrective action is determined, not by any paralegal oversight committe, and not by legislature, but by the state court system. Attorney's are not actually REGULATED by the ABA, but rather by the State Supreme Court. This is a common misconception in the secular world. The ABA merely provides guidelines, but actual sanctions and decisions stem from the Supreme Beings in the appropriate state. Therefore, any question about specific state-rules in an ethics situation will be found in the state Supreme Court's publications. This tid-bit of trivia knowledge will more than likely be tested on both the exam and the CLA.
As I do not have access to the textbook, I am unable to give guidelines on specific sanctions that may be placed on attorneys, but know that they are varied in both attitude and severeness. These are explained in detail in the text. I also suggest that you jot down an outline here titled "Sanctions for Breach of Conduct" and just make a list. It will be good to know them, and they will probably be tested as well.
Moving on to Unauthorized Practice of Law, commonly known as UPL. This is an interesting topic. What, exactly, constitutes the practice of law? Well, who knows? Attorneys have been around for several centuries, and they are still working that one out. But we DO know a few things. First, never, ever, EVER give a client ANY legal advice. This will unequivocally count. As a paralegal, you may be put in a unique position interacting with clients. As they get comfortable with you, they will tend to turn to you with their questions. You may answer questions about procedure- the next step the attorney is going to take, which forms are being filed, and all that stuff. But do NOT tell a client what to DO if it pertains to the legal system or to statute. You MAY suggest that they see a medical counselor, you MAY offer encouragement (however, do NOT state that they ARE going to win a case), and general hopes and suggestions along those lines. Do NOT tell them what to do with assets relating to a case, do NOT offer interpretations about the law, unless directed to do so by your supervising attorney. And if directed to do so, make absotively, posilutely sure that you remain within the strict guidelines given for that exact, particular situation by the attorney and do not stray from them.
The other areas that are well-defined about UPL are fairly clear: do not sign documents with your name, do not take depositions (your attorney will handle this and know (s)he has to anyway), and do not represent a client in court. Now, for those of you with friends representing themselves in a proceeding pro-se, they may turn to you for assistance because of your specific knowledge of the legal mysteries. This is a dangerous area to wade through. If you decide to assist them QUIETLY, you are taking too much risk, in my not-so-humble opinion. Because, if you slip, they can always blame it on you and get you for UPL. Do not let friendships stand in the way of your own professional safety.
Some states have a special certification as a Certified Legal Document Preparer. You might want to look into this. It allows for a certain amount quasi-legal work. Basically, someone comes to you and says they want to change their name or file for divorce or something. What you do is hand them the appropriate documents to fill out. Then they bring the completed docs back to you, and you file them with the court and publish any appropriate public announcement. It might be a viable supplement to look into. However, always remain on the alert to what you say. Again, NEVER GIVE ADVICE. (also, and duh, do not ever represent yourself as an attorney. Rather, always make it explicit that you are NOT one.)
Confidentiality: when you are interviewing a client, it is always wise to clearly state to them that any information they share with you will be kept secret between you and the office. This will break down at least a few barriers for the client and allow them to be more honest with you. Do not trust their Hollywood/Law & Order knowledge which they will bring with them. Make things clear from the beginning that what they say is confidential and will not be shared outside the office. Even if they admit that they did in fact murder someone, you still cannot broadcast that information. None at all, no matter how serious. This is known as the Attorney-Client privilege. Note it in your outline. Also, there is a Work Product privilege. This allows for all the attorney's documents to be protected against opposing counsel. Again, the rule holds: Keep Your Mouth Shut. When the client knows that you willnot AND cannot share the information they tender to you, you are ensured against obtaining inaccurate information. BUT, always hold to another premise: Whatever you are told is a lie. Always look for contradictions in clients' statements, and always attempt to verify facts independently. This will ensure that the attorney is fully informed as the facts so he doesn't look like an idiot later on. Pay attention to the chart given on page 6 of the syllabus.
People are stupid, and whatever you are told is a lie. These are the two most powerful weapons you can have in your arsenal when approaching any new situation. And your backup safety is the general consideration of Confidentiality. Keep this moral standard in your mind 24/7. Now, those of you that drink have to pay special attention to this rule. I have seen it personally more than once- a paralegal gets drunk, loses his inhibitions and doesn't know what he is doing/saying, and inadvertantly starts talking about the case weighing on his mind most at the time. You have a very special position as a paralegal with access to very special information; and this information should be very closely guarded. Decide for yourself if you can handle this risk.
On to a more practical area: Conflicts of Interest. This is a difficult one to discuss. Basically, any situation that will tear an attorney between two clients is a conflict. For instance, he cannot represent two opposing parties in the same proceeding; he cannot use knowledge obtained confidentially from his representation of a client against that client in the future; an attorney cannot be bribed (duh); cannot front funds for the client (except when working on contingency); etc. Again, without the aid of the text, this is a difficult topic to discuss. However, the text does cover this very succinctly. Take your notebook and create an outline of the nine specific conflicts brought up in the text and syllabus, and this time make a summary about them.
Solicitation and Advertising: two fairly separate and clear methods. In advertising, the attorney is allowed to put up posters, billboards, phone ads, ect. as long as he makes no specific representations to his clients. This is why all the advertising you see fluffs up the prior experience of the attorney- to give the public knowledge of who and what he is. However, he is refrained from saying things like "I win all divorce cases" and stupid things like that, and from making false statements (duh). Advertisements just must be extremely general.
Solicitations, on the other hand, are much more highly regulated. A solicitation occurs when the attorney or his agent initiate personal contact with a potential client, unilaterally. This is pretty much never allowed, it's really a form of victimization. The client must come to you, unless the person being solicited is family or a former client. These special relationships allow for direct approach of the attorney to the client. The rules governing solicitation, however, only apply to cases where the attorney will make money. If the attorney wants a case pro-bono because he has to get his hours in, he is allowed to go out and make that direct contact.
It's 2:30 am over here, so I am going to cut this off with lesson 5. Hopefully, this will allow at least a little clarification about the material. It is mostly common sense all conditioned and explained. I have attempted to give an overview, and supplement the syllabus, as opposed to breaking each lesson's individual components down. Please e-mail me your input as to this, any feedback will be appreciated as I have never done this before.
Steven
Now, about 75% of ethics can be summed up in one phrase: "Keep your stupid mouth shut." Yes, you are given permission to substitute any appropriate French adjective in place of "stupid." In any scenario, if you see someone blabbing off at the mouth, it should automatically scream "ETHICS BREACH!!!" in your mind. Plus, it helps that you will have a separate exam for this course, so you will know that you are looking for one. Do NOT discuss your cases outside the office; do NOT "share information" with a third-party regarding any case; do NOT speak with someone regarding a case, even a co-professional, without your supervisor's permission. Just keep...your...mouth...shut. If you do that, you have nothing to worry about.
In a breach of ethics, corrective action is determined, not by any paralegal oversight committe, and not by legislature, but by the state court system. Attorney's are not actually REGULATED by the ABA, but rather by the State Supreme Court. This is a common misconception in the secular world. The ABA merely provides guidelines, but actual sanctions and decisions stem from the Supreme Beings in the appropriate state. Therefore, any question about specific state-rules in an ethics situation will be found in the state Supreme Court's publications. This tid-bit of trivia knowledge will more than likely be tested on both the exam and the CLA.
As I do not have access to the textbook, I am unable to give guidelines on specific sanctions that may be placed on attorneys, but know that they are varied in both attitude and severeness. These are explained in detail in the text. I also suggest that you jot down an outline here titled "Sanctions for Breach of Conduct" and just make a list. It will be good to know them, and they will probably be tested as well.
Moving on to Unauthorized Practice of Law, commonly known as UPL. This is an interesting topic. What, exactly, constitutes the practice of law? Well, who knows? Attorneys have been around for several centuries, and they are still working that one out. But we DO know a few things. First, never, ever, EVER give a client ANY legal advice. This will unequivocally count. As a paralegal, you may be put in a unique position interacting with clients. As they get comfortable with you, they will tend to turn to you with their questions. You may answer questions about procedure- the next step the attorney is going to take, which forms are being filed, and all that stuff. But do NOT tell a client what to DO if it pertains to the legal system or to statute. You MAY suggest that they see a medical counselor, you MAY offer encouragement (however, do NOT state that they ARE going to win a case), and general hopes and suggestions along those lines. Do NOT tell them what to do with assets relating to a case, do NOT offer interpretations about the law, unless directed to do so by your supervising attorney. And if directed to do so, make absotively, posilutely sure that you remain within the strict guidelines given for that exact, particular situation by the attorney and do not stray from them.
The other areas that are well-defined about UPL are fairly clear: do not sign documents with your name, do not take depositions (your attorney will handle this and know (s)he has to anyway), and do not represent a client in court. Now, for those of you with friends representing themselves in a proceeding pro-se, they may turn to you for assistance because of your specific knowledge of the legal mysteries. This is a dangerous area to wade through. If you decide to assist them QUIETLY, you are taking too much risk, in my not-so-humble opinion. Because, if you slip, they can always blame it on you and get you for UPL. Do not let friendships stand in the way of your own professional safety.
Some states have a special certification as a Certified Legal Document Preparer. You might want to look into this. It allows for a certain amount quasi-legal work. Basically, someone comes to you and says they want to change their name or file for divorce or something. What you do is hand them the appropriate documents to fill out. Then they bring the completed docs back to you, and you file them with the court and publish any appropriate public announcement. It might be a viable supplement to look into. However, always remain on the alert to what you say. Again, NEVER GIVE ADVICE. (also, and duh, do not ever represent yourself as an attorney. Rather, always make it explicit that you are NOT one.)
Confidentiality: when you are interviewing a client, it is always wise to clearly state to them that any information they share with you will be kept secret between you and the office. This will break down at least a few barriers for the client and allow them to be more honest with you. Do not trust their Hollywood/Law & Order knowledge which they will bring with them. Make things clear from the beginning that what they say is confidential and will not be shared outside the office. Even if they admit that they did in fact murder someone, you still cannot broadcast that information. None at all, no matter how serious. This is known as the Attorney-Client privilege. Note it in your outline. Also, there is a Work Product privilege. This allows for all the attorney's documents to be protected against opposing counsel. Again, the rule holds: Keep Your Mouth Shut. When the client knows that you willnot AND cannot share the information they tender to you, you are ensured against obtaining inaccurate information. BUT, always hold to another premise: Whatever you are told is a lie. Always look for contradictions in clients' statements, and always attempt to verify facts independently. This will ensure that the attorney is fully informed as the facts so he doesn't look like an idiot later on. Pay attention to the chart given on page 6 of the syllabus.
People are stupid, and whatever you are told is a lie. These are the two most powerful weapons you can have in your arsenal when approaching any new situation. And your backup safety is the general consideration of Confidentiality. Keep this moral standard in your mind 24/7. Now, those of you that drink have to pay special attention to this rule. I have seen it personally more than once- a paralegal gets drunk, loses his inhibitions and doesn't know what he is doing/saying, and inadvertantly starts talking about the case weighing on his mind most at the time. You have a very special position as a paralegal with access to very special information; and this information should be very closely guarded. Decide for yourself if you can handle this risk.
On to a more practical area: Conflicts of Interest. This is a difficult one to discuss. Basically, any situation that will tear an attorney between two clients is a conflict. For instance, he cannot represent two opposing parties in the same proceeding; he cannot use knowledge obtained confidentially from his representation of a client against that client in the future; an attorney cannot be bribed (duh); cannot front funds for the client (except when working on contingency); etc. Again, without the aid of the text, this is a difficult topic to discuss. However, the text does cover this very succinctly. Take your notebook and create an outline of the nine specific conflicts brought up in the text and syllabus, and this time make a summary about them.
Solicitation and Advertising: two fairly separate and clear methods. In advertising, the attorney is allowed to put up posters, billboards, phone ads, ect. as long as he makes no specific representations to his clients. This is why all the advertising you see fluffs up the prior experience of the attorney- to give the public knowledge of who and what he is. However, he is refrained from saying things like "I win all divorce cases" and stupid things like that, and from making false statements (duh). Advertisements just must be extremely general.
Solicitations, on the other hand, are much more highly regulated. A solicitation occurs when the attorney or his agent initiate personal contact with a potential client, unilaterally. This is pretty much never allowed, it's really a form of victimization. The client must come to you, unless the person being solicited is family or a former client. These special relationships allow for direct approach of the attorney to the client. The rules governing solicitation, however, only apply to cases where the attorney will make money. If the attorney wants a case pro-bono because he has to get his hours in, he is allowed to go out and make that direct contact.
It's 2:30 am over here, so I am going to cut this off with lesson 5. Hopefully, this will allow at least a little clarification about the material. It is mostly common sense all conditioned and explained. I have attempted to give an overview, and supplement the syllabus, as opposed to breaking each lesson's individual components down. Please e-mail me your input as to this, any feedback will be appreciated as I have never done this before.
Steven
Thursday, July 19, 2007
Quick Introduction (Posted by Steven)
Hello everyone! I thought that before I begin blogging (which I have never utilized this program before, so this will be a learning experience for me, so please be patient) that I would just post a short introduction about myself and background; just so you can rest assured that I'm not some wacko-nut that blows out any random orifice.
First off, I am a graduate of Oak Brook's paralegal program myself. I was actually in the same class as both Jenny and Alex. That was a privilege, let me tell you. We really learned a lot from each other and it would have been much more difficult to complete it without them.
After the paralegal program, I thought it prudent to follow through with the JD program; however, I was forced to withdraw in the middle of the second year due to other committments.
Currently, I am studying for my undergraduate degree online, as well as pursuing several professional certifications. The past three and a half years have seen me working as a personal lines insurance agent in my hometown. However, two months ago I moved on, packed my bags, and took a job right near Sacramento, CA. Presently, I am working for another independent agency primarily as a business coverage analyst while processing personal lines applications.
So that's my history. I must honestly say that without the skills I had learned at Oak Brook, I doubt that I would have this job. It entails reading contracts and forms up the wazoo, and interpreting them to ensure that our business clients have the appropriate coverages. It's not as simple as it sounds. And I'm only 22. So I feel very positive that, whatever career you may currently be in or potentially be placed, you will find at least some skills in this course are invaluable.
That to say, a little about my discussion method. I like it short and to the point, without all this froo-froo. I am also very pragmatic; this will probably come out at some point in the future, so do not let it take you by surprise. As you approach finals, I will also point out areas in the course where you should pay particular attention. Also, never, ever, EVER let this blogring be a substitute for the syllabus. Yes, the syllabus has lots of impractical information, but it also tells you pretty much what will be on the test.
So, that's pretty much me and it. Feel free to send any questions you may have at any time to my personal e-mail at lawhopes@gmail.com. I access it several times throughout the day, so I will get it. One request, if you remember, when you send an e-mail, please mark "OBCL" in the subject line so it will go straight to my inbox and flag my attention. I *can* get over 50 e-mails in one day, so doing so will make them stand out a little more. When I see that, it will go to the top of my priority list.
Have a great night!
First off, I am a graduate of Oak Brook's paralegal program myself. I was actually in the same class as both Jenny and Alex. That was a privilege, let me tell you. We really learned a lot from each other and it would have been much more difficult to complete it without them.
After the paralegal program, I thought it prudent to follow through with the JD program; however, I was forced to withdraw in the middle of the second year due to other committments.
Currently, I am studying for my undergraduate degree online, as well as pursuing several professional certifications. The past three and a half years have seen me working as a personal lines insurance agent in my hometown. However, two months ago I moved on, packed my bags, and took a job right near Sacramento, CA. Presently, I am working for another independent agency primarily as a business coverage analyst while processing personal lines applications.
So that's my history. I must honestly say that without the skills I had learned at Oak Brook, I doubt that I would have this job. It entails reading contracts and forms up the wazoo, and interpreting them to ensure that our business clients have the appropriate coverages. It's not as simple as it sounds. And I'm only 22. So I feel very positive that, whatever career you may currently be in or potentially be placed, you will find at least some skills in this course are invaluable.
That to say, a little about my discussion method. I like it short and to the point, without all this froo-froo. I am also very pragmatic; this will probably come out at some point in the future, so do not let it take you by surprise. As you approach finals, I will also point out areas in the course where you should pay particular attention. Also, never, ever, EVER let this blogring be a substitute for the syllabus. Yes, the syllabus has lots of impractical information, but it also tells you pretty much what will be on the test.
So, that's pretty much me and it. Feel free to send any questions you may have at any time to my personal e-mail at lawhopes@gmail.com. I access it several times throughout the day, so I will get it. One request, if you remember, when you send an e-mail, please mark "OBCL" in the subject line so it will go straight to my inbox and flag my attention. I *can* get over 50 e-mails in one day, so doing so will make them stand out a little more. When I see that, it will go to the top of my priority list.
Have a great night!
Wednesday, July 18, 2007
Another Perspective (Posted by Jenny)
Hello everyone!
Can you believe you are so close to graduating?! As you finish out the last few weeks of your courses, I have a special bonus for you. In addition to Gabe & Alex, another great alumnus has made himself available to you.
A wonderful fellow paralegal alumnus (and former classmate of mine) has offered to give you the benefit of his input during the last few weeks of your quarter. I am so grateful for Steven Sanderson’s offer as during our paralegal class, he always gave me excellent advice!! I know you will be benefited by his involvement.
Steven can be reached by e-mail at lawhopes@gmail.com and would welcome your questions! Be watching for his posts on here as well!
Happy studying!:)
Can you believe you are so close to graduating?! As you finish out the last few weeks of your courses, I have a special bonus for you. In addition to Gabe & Alex, another great alumnus has made himself available to you.
A wonderful fellow paralegal alumnus (and former classmate of mine) has offered to give you the benefit of his input during the last few weeks of your quarter. I am so grateful for Steven Sanderson’s offer as during our paralegal class, he always gave me excellent advice!! I know you will be benefited by his involvement.
Steven can be reached by e-mail at lawhopes@gmail.com and would welcome your questions! Be watching for his posts on here as well!
Happy studying!:)
Tuesday, July 10, 2007
Legal Writing as Communication. (Posted by Gabe)
I've done a lot of study on communication, partly because it is necessary for what I do, and partly because I love it. I love it because communication is all about connection--connecting the communicator with the audience. What works in some cases will utterly fail with others! It doesn't matter how fluent you are, or how much work you have put into your communication, or even how skillful you are; if you don't connect, you have failed to communicate. That is why knowing your audience is such a critical part of communication.
Being a student of communication, I am often fascinated by the forms that communication can take. Communication has changed a lot in a short period of time. For instance, have any of you ever read the Federalist Papers? If you have you were probably--as I was--overwhelmed by the complex arguments and language. But those were written for New York farmers as the newspaper editorials of the day! If someone tried to write papers like that today, they would ultimately have a complete failure to communicate (sorry, Cool Hand Luke).
But I am often appalled to see the swing that we have made in the other direction. People today often don't, or can't, use even the simplest rules of grammar and punctuation. For instance, this blog tries to help students learn legal writing, but routinely violates basic rules of capitalization. That may be just fine if you are sending an Instant Message to a friend, but when engaging in any "real" form of writing it just makes you look uneducated or like you don't care about what you are doing.
Legal writing is a very specific form of communication, with a very particular audience. It is very different even than other types of legal communication--for instance, trial advocacy. Trial advocacy, talking to a jury, is all about telling stories, keeping the attention of laypeople who may be otherwise totally bored. Use to many big words, and you'll lose them. But if you try to tell stories to the judge in your legal brief, you'll be laughed out of court!
The other day, a member of my volleyball team found out that I was in law school, and proceeded to launch into a rant against the big words used by lawyers, and how everything should be more simple. I considered informing him that obtaining a Juris Doctor entitled me to use obtuse vocabulary to obfuscate the salient itemization of my exorbitant pecuniary demands, but thought better of it. But what is the appropriate use of complexity in legal writing?
To answer that question, I think we need to define the goals of legal writing. Depending on the type of document you are writing, the goal is either to persuade or to inform. Either way, legal writing must first be clear. Cases come down to very specific facts, and misstating those facts, or misleading the reader (either intentionally OR accidentally!) will cause the writer to lose credibility, and maybe even the case. Clarity also requires logical flow and organization.
Second, legal writing must be accurate. Clarity would be pointless if you clearly communicated a falsehood. There are certainly ways to artfully phrase negative facts, and effective advocacy requires the lawyer to use such art from time to time, but in the final analysis, the writing must be accurate. Accuracy also requires a certain element of completeness.
Finally, legal writing should be discerning. What I mean by this is that you should choose each word carefully. Using words that are offensive or can be misinterpreted has no place in good legal writing. If you offend someone, or if you give someone the wrong impression, you have detracted from the argument that you are making, and lost the link with your reader.
I told my friend about a modern movement called "Plain English for Lawyers." The basic premise behind the "Plain English" movement is that legal writing should not look any different than any other well-written document. Legal writing has a reputation for being full of meaningless repetition ("aid and abet," for instance), terms of art, and archaic grammar. These are certainly faults, and good legal writing has no place for terms like "heretofore" or "wherewithal."
But I would caution you against taking these considerations too far! Do not forget your goals in your quest to be simple. Always keep your audience and your goals in the back of your mind, and write with the persuasive power that comes when you communicate with clarity, accuracy, and discernment.
For More Information--
What is Really Wrong with the English Language?
Wikipedia on Legal Writing
Being a student of communication, I am often fascinated by the forms that communication can take. Communication has changed a lot in a short period of time. For instance, have any of you ever read the Federalist Papers? If you have you were probably--as I was--overwhelmed by the complex arguments and language. But those were written for New York farmers as the newspaper editorials of the day! If someone tried to write papers like that today, they would ultimately have a complete failure to communicate (sorry, Cool Hand Luke).
But I am often appalled to see the swing that we have made in the other direction. People today often don't, or can't, use even the simplest rules of grammar and punctuation. For instance, this blog tries to help students learn legal writing, but routinely violates basic rules of capitalization. That may be just fine if you are sending an Instant Message to a friend, but when engaging in any "real" form of writing it just makes you look uneducated or like you don't care about what you are doing.
Legal writing is a very specific form of communication, with a very particular audience. It is very different even than other types of legal communication--for instance, trial advocacy. Trial advocacy, talking to a jury, is all about telling stories, keeping the attention of laypeople who may be otherwise totally bored. Use to many big words, and you'll lose them. But if you try to tell stories to the judge in your legal brief, you'll be laughed out of court!
The other day, a member of my volleyball team found out that I was in law school, and proceeded to launch into a rant against the big words used by lawyers, and how everything should be more simple. I considered informing him that obtaining a Juris Doctor entitled me to use obtuse vocabulary to obfuscate the salient itemization of my exorbitant pecuniary demands, but thought better of it. But what is the appropriate use of complexity in legal writing?
To answer that question, I think we need to define the goals of legal writing. Depending on the type of document you are writing, the goal is either to persuade or to inform. Either way, legal writing must first be clear. Cases come down to very specific facts, and misstating those facts, or misleading the reader (either intentionally OR accidentally!) will cause the writer to lose credibility, and maybe even the case. Clarity also requires logical flow and organization.
Second, legal writing must be accurate. Clarity would be pointless if you clearly communicated a falsehood. There are certainly ways to artfully phrase negative facts, and effective advocacy requires the lawyer to use such art from time to time, but in the final analysis, the writing must be accurate. Accuracy also requires a certain element of completeness.
Finally, legal writing should be discerning. What I mean by this is that you should choose each word carefully. Using words that are offensive or can be misinterpreted has no place in good legal writing. If you offend someone, or if you give someone the wrong impression, you have detracted from the argument that you are making, and lost the link with your reader.
I told my friend about a modern movement called "Plain English for Lawyers." The basic premise behind the "Plain English" movement is that legal writing should not look any different than any other well-written document. Legal writing has a reputation for being full of meaningless repetition ("aid and abet," for instance), terms of art, and archaic grammar. These are certainly faults, and good legal writing has no place for terms like "heretofore" or "wherewithal."
But I would caution you against taking these considerations too far! Do not forget your goals in your quest to be simple. Always keep your audience and your goals in the back of your mind, and write with the persuasive power that comes when you communicate with clarity, accuracy, and discernment.
For More Information--
What is Really Wrong with the English Language?
Wikipedia on Legal Writing
Sunday, July 08, 2007
CLA Exam Tips (Posted by Jenny)
Hello everyone!
For those of you with the CLA exam looming large on your horizon this month, I thought you might appreciate some advice from one who has sat for the boards and been there before you. For those of you who will not take the exam until December, read on and tuck this away for future reference!
I consider the CLA credential to be valuable and worth getting and maintaining. Obviously, the most important thing to an attorney is what you know and what you can do / learn, but I have found in my area (it may be different elsewhere) that the CLA credential is known and does lend some credence to your paralegal certificate. The law firms here will pay for the CLE needed to maintain certification.
Paralegals have different views on the CLA credential. Many successful paralegals do not have it and many do. But I believe it is valuable because it is nationally recognized, (and portable:) it lends credence to your paralegal studies, and since you have worked so hard to graduate with your paralegal certificate, why not take the final step and sit for the CLA exam?
1. Do not let the practice tests or mock exam scare you!
I don't know what the latest editions of the CLA study manuals are like, but the 2nd edition (the one I used to study for my 2005 exam) was very very difficult. I was almost in despair when I took the mock exam after completing all the reviews and practice tests and still got scores which I felt would not enable me to pass the actual test. However, when I asked another paralegal (who I consider much more brilliant than I will ever be) he told me that the practice exams were much harder than the actual exam and the scores I was getting were better than he had gotten pre-test. I found this to be very true - the practice tests were much harder than the actual exam.
As I said, I have not seen the 3rd edition of the review materials, but I am guessing that the same will still hold true. I have never found any test prep books that were easier than the actual exam.
So if this has been upsetting you, be encouraged!
2. The last few days before the exam
What you do the week of the exam studying - wise is very important. I know everyone's situation is different and you may have to cram because of unavoidable situations, but if it is at all possible I would advise against it.
Each of us will prep for an exam differently. I am sure you know yourself and what would be beneficial / not beneficial for you to do the last few days before a big exam. One person I know took the portions of the mock exam that she would be taking the next day the night before. Another person I know laid aside the books after taking the mock exam at the beginning of the week of the exam. What you do is up to you. Just remember: do not make yourself more stressed than you already are. Avoid cramming / over studying - they will most likely make you miserable.
I personally took the mock exam the week of the CLA exam and did not study for the rest of the week. I had not planned on doing that. I had wanted to take all the practice tests over again, but wasn't able to because of work (plus the fact that I was battling major exhaustion / mono). This turned out to be the best thing I could have done. It enabled me to relax and come in to the exam rested.
So decide what you need to do and what would be most beneficial for you. Just like an athlete, the last few days before the "big race" are very vital to success or failure.
3. Get plenty of sleep the night before the exam!!
I cannot emphasize this enough. The CLA exam has been likened to the Bar exam in regards to difficulty and stress. It is a very long and draining 2 days. You will need to be at your best. Adequate sleep plays a big role in that.
4.The first day of the exam
One of the things that I will always be grateful for is that I went out for breakfast with a friend that made me laugh and eat a good breakfast. This helped calm my nerves and fortify me for the long day ahead. Also, make sure you arrive at the testing center early so you have plenty of time to get a seat, sign in, etc.
5. During the exam
You will have adequate time during the exam. You will not have ample time, but you will have adequate time. It is very important that you budget your time well in order to complete all sections in the time allowed.
Work through the questions steadily. Don't stop and stare at one too long. If the answer doesn't immediately come to mind, either pick the most likely choice or leave it blank and go on. You can come back to it later. This is especially important in the General Law section where you will have an hour and a half to work through 5 exams. All I remember about that hour and a half of the exam was filling in answer bubbles frantically.:)
Remain focused!!
In the section where you have to write a memorandum, it is especially important to not panic or get distracted. I remember vividly laying my pencil on the table and asking the Lord to help me write the next line. I finished my memo right before the time was up. I couldn't believe I had actually written a complete memo and finished in an hour!! God is good.
6. After the exam
When you have laid your pencil down for the last time and left the testing center, do your best to leave the exam behind you. You did your best, and that is all you can do. For better or worse, it is done and in the Lord's hands. If you get the results and find out you have to take a section over, take it over. The exam admin told all of us that the only thing to be ashamed of was not coming back and re-taking sections. Even the author of the review materials had to re-take parts of the exam!
I hope all of the above is helpful. Feel free to e-mail or call me and ask any CLA questions you want. Many blessings on your exam, we'll be praying for you, and please let us know how it goes!!
For those of you with the CLA exam looming large on your horizon this month, I thought you might appreciate some advice from one who has sat for the boards and been there before you. For those of you who will not take the exam until December, read on and tuck this away for future reference!
I consider the CLA credential to be valuable and worth getting and maintaining. Obviously, the most important thing to an attorney is what you know and what you can do / learn, but I have found in my area (it may be different elsewhere) that the CLA credential is known and does lend some credence to your paralegal certificate. The law firms here will pay for the CLE needed to maintain certification.
Paralegals have different views on the CLA credential. Many successful paralegals do not have it and many do. But I believe it is valuable because it is nationally recognized, (and portable:) it lends credence to your paralegal studies, and since you have worked so hard to graduate with your paralegal certificate, why not take the final step and sit for the CLA exam?
1. Do not let the practice tests or mock exam scare you!
I don't know what the latest editions of the CLA study manuals are like, but the 2nd edition (the one I used to study for my 2005 exam) was very very difficult. I was almost in despair when I took the mock exam after completing all the reviews and practice tests and still got scores which I felt would not enable me to pass the actual test. However, when I asked another paralegal (who I consider much more brilliant than I will ever be) he told me that the practice exams were much harder than the actual exam and the scores I was getting were better than he had gotten pre-test. I found this to be very true - the practice tests were much harder than the actual exam.
As I said, I have not seen the 3rd edition of the review materials, but I am guessing that the same will still hold true. I have never found any test prep books that were easier than the actual exam.
So if this has been upsetting you, be encouraged!
2. The last few days before the exam
What you do the week of the exam studying - wise is very important. I know everyone's situation is different and you may have to cram because of unavoidable situations, but if it is at all possible I would advise against it.
Each of us will prep for an exam differently. I am sure you know yourself and what would be beneficial / not beneficial for you to do the last few days before a big exam. One person I know took the portions of the mock exam that she would be taking the next day the night before. Another person I know laid aside the books after taking the mock exam at the beginning of the week of the exam. What you do is up to you. Just remember: do not make yourself more stressed than you already are. Avoid cramming / over studying - they will most likely make you miserable.
I personally took the mock exam the week of the CLA exam and did not study for the rest of the week. I had not planned on doing that. I had wanted to take all the practice tests over again, but wasn't able to because of work (plus the fact that I was battling major exhaustion / mono). This turned out to be the best thing I could have done. It enabled me to relax and come in to the exam rested.
So decide what you need to do and what would be most beneficial for you. Just like an athlete, the last few days before the "big race" are very vital to success or failure.
3. Get plenty of sleep the night before the exam!!
I cannot emphasize this enough. The CLA exam has been likened to the Bar exam in regards to difficulty and stress. It is a very long and draining 2 days. You will need to be at your best. Adequate sleep plays a big role in that.
4.The first day of the exam
One of the things that I will always be grateful for is that I went out for breakfast with a friend that made me laugh and eat a good breakfast. This helped calm my nerves and fortify me for the long day ahead. Also, make sure you arrive at the testing center early so you have plenty of time to get a seat, sign in, etc.
5. During the exam
You will have adequate time during the exam. You will not have ample time, but you will have adequate time. It is very important that you budget your time well in order to complete all sections in the time allowed.
Work through the questions steadily. Don't stop and stare at one too long. If the answer doesn't immediately come to mind, either pick the most likely choice or leave it blank and go on. You can come back to it later. This is especially important in the General Law section where you will have an hour and a half to work through 5 exams. All I remember about that hour and a half of the exam was filling in answer bubbles frantically.:)
Remain focused!!
In the section where you have to write a memorandum, it is especially important to not panic or get distracted. I remember vividly laying my pencil on the table and asking the Lord to help me write the next line. I finished my memo right before the time was up. I couldn't believe I had actually written a complete memo and finished in an hour!! God is good.
6. After the exam
When you have laid your pencil down for the last time and left the testing center, do your best to leave the exam behind you. You did your best, and that is all you can do. For better or worse, it is done and in the Lord's hands. If you get the results and find out you have to take a section over, take it over. The exam admin told all of us that the only thing to be ashamed of was not coming back and re-taking sections. Even the author of the review materials had to re-take parts of the exam!
I hope all of the above is helpful. Feel free to e-mail or call me and ask any CLA questions you want. Many blessings on your exam, we'll be praying for you, and please let us know how it goes!!
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