Wednesday, September 2, 2015

The Expert Institute Best Legal Blog Nominee

I'm pleased to announce that Lady (Legal) Writer has been selected to compete against other well-known law blogs in The Expert Institute's Best Legal Blog contest.

If you're inclined, please vote here for Lady (Legal) Writer for Best Niche and Specialty Blog!

Tuesday, September 1, 2015

IBM Watson's Tone Analyzer

A few weeks ago this article about IBM Watson's new tone analyzer made the rounds. The goal of the tone analyzer is to help writers "assess and refine" the tone of their written communications. The analyzer considers three different "types" of tone: emotional tone (e.g. anger, cheerfulness), social tone (e.g. openness, agreeableness) and writing style tone (e.g. analyticalness, confidence). Per IBM, the analyzer is currently in "experimental" mode. 

From what I can tell, the analyzer appears to compile scores based on the particular words used and not other factors, such as sentence structure and sentence and paragraph length, that I think are also important in this type of analysis. 

I was skeptical, but thought I'd give the analyzer a go using different types of documents. First, I used the text of an email I sent to a friend. As expected, my emotional cheerfulness score was high (82%), as were my social agreeableness score (84%) and writing analytical score (82%). After all, I was talking to a friend! 

I was surprised to see, though, that my writing tentativeness score was also high (90%), given that I generally make quick, definitive decisions. But when I went back and looked closely at the content of my email, I realized that I did sound somewhat tentative about several topics, though I didn't intend to come across that way.  

Next, I plugged in the text of a professional letter I had sent. My emotional tone showed a high cheerfulness score (78%) but also a really high negative score (92%). I did not intend to sound negative, and in re-reading my letter, I do not believe I sounded negative. The words the analyzer flagged as indicating negativity did not (at least to me) convey negativity given the manner in which I used them, though they could have conveyed negativity in other contexts. My social tone showed scores in agreeableness (55%) and conscientiousness (16%), which I could see in the language I used. And I was pleased to see that my writing style confidence score was 100% as I wanted to (and apparently had) come across as completely confident in my position.  

Finally, I entered several paragraphs of a brief I recently wrote. I anticipated this sample would show confidence, analyticalness, and, perhaps, some unintended hostility. 

The results weren't quite what I expected. The analyzer showed a somewhat negative emotional tone (46%) but also cheerfulness, which I don't really see in the input sample. My emotional anger score was 0%, which I was pleased to see as I didn't intend to come across as angry in my advocacy efforts and was glad I didn't.

My social tone showed 59% conscientiousness, which is good for a lawyer, given that the concept encompasses organization and thoughtfulness. Finally, my writing style was 86% analytical (which you'd expect from a legal document), but also 35% confident and 33% tentative.  I would have expected my confidence score to have been substantially higher and my tentativeness score to have been substantially lower. And in looking back at my sample, I don't see tentativeness or hedging and see language showing substantial confidence in my position.

In my three samples, I agreed with Watson's analyzer in many instances but disagreed in others. This could mean several things: Either the analyzer is imperfect (probable), I'm imperfect at assessing my own writing (also probable) or some combination of the two caused the results (the most probable, I think). 

The analyzer is still in its testing phase, and I expect IBM will continue to improve it. That said, the computer-generated results I got were, in many cases, consistent with my human assessment. And I didn't test the analyzer using someone else's work, only my own. So the disconnect could be the result of my bias toward my own writing, and my results and Watson's results might be more consistent if I hadn't analyzed my own work. 

The analyzer has many potential applications in the world of legal writing, and I'll continue to follow IBM's product updates. I'll be interested to test the Watson analyzer again once the final product is available. 

Friday, August 28, 2015

Applause for Justice Kagan

One of the Court's two* best writers, Justice Elena Kagan, recently talked to Bryan Garner about the importance of legal writing.

Justice Kagan told Garner that law schools should "think in a deep way" about the importance of legal writing instruction which, Kagan acknowledged, is "one of the hardest things to teach."   

Justice Kagan's timing at the start of a new academic year couldn't be better for those of us who do have the difficult yet rewarding task of teaching legal writing.

Garner's multi-part interview with Kagan is here, and a National Law Journal article on the interview is here.

Happy Friday!

*Justice Kagan and Chief Justice Roberts are considered by many to the be the Court's best writers.

Tuesday, August 25, 2015

Come On In and Cover Me

It's OCI season for law students, many recent graduates are looking for positions, and firms and other employers are looking to hire before the end of the year. So what better time to talk about cover letters? 

Disclosure: I am not a career services professional. As a lawyer, though, I read many cover letters and resumes from new and young lawyers seeking employment.

The law-practice economy has been and continues to be a hirer’s market. This means as an applicant, you have to put your best foot forward and catch your reader’s attention quickly. Based on my experience on the hiring side, below are some tips to make your cover letters stand out. 
Use an introductory paragraph. In cover letters, space is at a premium, so you’ve got to make the most of what you’ve got. Start off with a bang by telling the reader how you learned of the position and why you’d be a good fit. If an employee of the potential employer or someone well-known to it (like a local judge) recommended you apply, put that person’s name in the first paragraph as well.   
Tailor your cover letter to the position and employer. Many applicants use the same cover letter over and over. While you should feel free to use certain passages in multiple letters, always tailor your letter to the position and employer. I saw many a form cover letter that referenced practice areas my firm didn’t have (like entertainment law) or geographic areas where my firm didn’t have an office. Make sure you’ve spent a couple of minutes learning about the position and the employer and tailor your letter as appropriate.

For example, if you’re applying for a litigation position, don’t use your cover letter to talk about contract-drafting or transactional experience. Highlight your in-court experience, membership on an award-winning moot court team, or STLA presidency. Use the position announcement to see what skills the employer is looking for and use your cover letter as an opportunity to highlight times when you’ve exhibited those traits. If the employer is looking for a self-starter, talk about specific times when you took and ran with a file at your previous employer or when you identified a need for an outline bank in one of your law school clubs and single-handedly made that happen. And remember—saying “I’m a self-starter” isn’t convincing. But using specific instances of past conduct to show you’re a self-starter is.   
Focus on your value to the employer.
Many cover-letter writers focus on how the employer or position will help them, rather than the opposite. I’ve seen this sentence or some variant too many times:

I believe this would be an excellent opportunity for me to further my legal career.

The employer wants to know what you can do for it.

My experience in insurance defense work will enable me to step in and start handling cases from day one.

Again, review the position announcement to see what type of experience or personality traits the employer is looking for, and focus on drafting a cover letter that highlights that experience and the value you’d bring to your potential employer.
Use active voice and strong verbs and avoid nominalizations. The good writing practices that apply elsewhere apply to cover letters as well. Use active voice and strong verbs. Avoid less-powerful nominalizatons, abstractions, and imprecise words that take up space but don’t add value:

As I student I had the opportunity to participate in a clinic. During my second year, we took the case of a client who we believed had been wrongfully arrested and jailed for several months. With the supervision of our advising attorney, other students and I participated in every aspect of preparing the client’s case. A trial, the jury decided to believe our client’s testimony, decided not to believe the arresting officer’s testimony, and reached the conclusion that our client had been wrongfully arrested and issued an award of $100,000. It was one of the most memorable experiences of my law school career. I know I want to be a criminal defense lawyer.

That passage isn't particularly illuminating. The paragraph below is about the same length but exponentially more persuasive. It tells a compelling story that highlights the student’s success, shows the student has real-world experience, and explains why the student wants to be a criminal defense lawyer. 

As a law student, I gained real-world legal experience by enrolling in a clinic. During my second year, our clinic took what we believed was a viable wrongful arrest case. Under the eye of our supervising attorney, my fellow students and I prepared every aspect of our client’s case, from interviewing her to filing the complaint to trying the case under the third-year practice act.  After a three-day trial, the jury concluded that our client was wrongfully arrested and awarded her $100,000. Handling her case from start to finish over a two-year span showed me what a difference lawyers can make in people’s lives and confirmed that I have the drive and passion to be a successful criminal defense lawyer.  

Proofread. Proofread. Proofread. Your cover letter must be perfect—even a single typo can prevent you from getting an interview for the job of your dreams. Once you've written your letter, proofread it until you just can’t look at it anymore. Start by spell-checking your letter. Then review for misused words and typos that Word want catch (See what I did there?). Read your letter out loud to yourself. Read it to a friend or family member. And have someone knowledgeable about the legal professional review it as well.   

Friday, August 21, 2015

Good Ole' Southern Sayin'

We're in the dog days of summer in the South. The temperature is high. The humidity is high. The wind doesn’t blow and the air is heavy. If you’ve lived in the South, you’re familiar with these dog days. And you’re also probably familiar with Southernisms—those uniquely Southern phrases that make their way into almost every conversation with a true Southerner.

These Southernisms have made their way into judicial opinions as well. Surprisingly, though, most of these Southern phrases have come from judges in non-Southern states. I’ve listed some of my favorites below:

-You can catch more flies with honey than vinegar, People v. Crawford, California

-Grown too big for his britches, Carrasquillo v. Sindicato De Empleados de Equipo Pesado, Construcciony Ramas Anexas de P.R., Inc., Puerto Rico

-That dog won’t hunt, U.S. v. Pineda-Mendoza, California

-Playing possum, Fattah v. Beard, Third Circuit

-Can’t make a silk purse out of a sow’s ear, Jawad v. Holder, Seventh Circuit

My favorite Southern phrase, “bless his heart,” didn’t make any opinions. I’ll keep looking for it, though—“after all, tomorrow is another day.”

Happy Friday!

Tuesday, August 18, 2015

Collective Soul

Collective nouns describe groups of people who act together (collectively) or as a single unit. Lawyers use collective nouns frequently:


When the people who make up the collective noun act collectively, the noun is singular and takes a singular verb:

-The Court rules …
-The majority holds …
-The jury finds …
-Congress votes …
-The legislature convenes …
-The committee calls …
-The corporation/business recalls …  

This also means that collective nouns take a singular pronoun (i.e. it):

-The Court ruled in favor of the defendant. In doing so, it overturned nearly 200 years of prior precedent.

-The legislature voted to amend its ill-thought-out apportionment statute.

-The court held that while U.S. Airways was not precluded from delegating its duties to third-party independent contractors, it remained liable to plaintiffs injured by the negligence of those contractors.

The people in these groups can act individually as well, in which case the collective noun takes a plural verb:

-The team disagree on the proper course of action and have asked the managing partner for assistance.

-The class have begun working on their first legal writing assignment.  

These sentences sound awkward, and the question of whether a group is acting collectively or individually can confuse both the writer and the reader. If the writer believes a collective group is acting individually, I think the better practice is to insert the word “members” (or a similar term) after the collective noun and use a plural verb:

-The team members disagree on the proper course of action and have asked the managing partner for assistance.

-The class members have begun working on their first legal writing assignment. 

So, unless this exception applies, a collective noun is never a “they” (a very common error I see from both lawyers and law students).

Friday, August 14, 2015

Deflategate Continued

If Brady’s brief is a 100-foot view of the case, the NFL’s brief is a 10,000-foot view. Brady makes many nuanced arguments about the propriety of his suspension, but the NFL’s brief can be summarized in one sentence: The CBA gives Goodell broad discretion to both interpret the CBA provisions and punish players and Goodell properly exercised that discretion.

Photo courtesy of AP/Ghanbari
The NFL doesn’t want the judge to get into the nitty gritty of the case, so it hammers the reader with the collectively-bargained-for nature of the CBA and reminds the reader that the standard of review is extraordinarily narrow. The terms Collective Bargaining Agreement and CBA appear nearly 50 times in the NFL’s 15-page brief. That’s not a coincidence—the NFL wants to remind the judge that this case comes down to the CBA provisions that give Goodell exceptionally broad power to mete out discipline.

The NFL argues that Brady wants is for Goodell to have interpreted the CBA differently, but the court’s review is extremely deferential to the arbitrator (here, Goodell) and is one of the “narrowest known to law”  (a quote from a Supreme Court case). This is an excellent use of helpful language from binding authority. And the NFL makes good public policy arguments: arbitration provisions exist to minimize in-court legal disputes, and the CBA’s appeals process “accords with Congress’s desire for parties to settle their labor disputes privately through final and binding arbitration.”

The NFL continues by touting the thoroughness of the Wells investigation and report and of  
Ted Wells
Photo courtesy of
Goodell’s decision-making process. The NFL describes the “months-long investigation” that resulted in a “thorough and public report” of 139 pages. It notes that Brady was represented by multiple counsel at the “extensive” arbitration hearing, and that Goodell “carefully” considered Brady’s arguments but rejected them based on his assessment of the evidence and interpretation of the CBA.

Brady argues that he was improperly disciplined without notice under somewhat obscure policies governing player equipment and competitive integrity. But the NFL counters that Brady was actually disciplined under the extraordinarily broad provision in the CBA permitting the NFL to discipline players for “conduct detrimental” to the League. Rather than delve into details of the many NFL policies that govern player conduct, the NFL cursorily dismisses each of Brady’s notice arguments with the conclusion that the discipline occurred under the broad “conduct detrimental” rule.

This argument (or lack thereof) may come back to bite the NFL. According to the Wells report itself, the Well investigation was conducted pursuant to the competitive integrity policy. If Brady’s argument that the competitive integrity policy does not apply to players is correct, the NFL may be in trouble.

The Deflategate saga continues. Oral argument is scheduled for August 19, though the judge has strongly encouraged the parties to settle the case, and settlement talks are ongoing. Given the speed with which the judge has acted, I think it likely that a written opinion will come down quickly.

Happy Friday!