New Blog: “Listen Like a Lawyer”

Check out this new lawyering blog on learning how to “Listen Like a Lawyer.”

Professor Jennifer Murphy Romig of Emory Law has started a new blog about effective listening and listening theory. Recent posts explore ethical listening, listening skills, and sound.

You can also check out Romig’s recent work on SSRN.com. I particularly like her pieces on using checklists in legal writing.

Introducing: Core Grammar for College

After years of hard work, my co-author Ruth Ann McKinney and I, together with our production team at FireStream Media and our publisher Carolina Academic Press, have released Core Grammar for College.

Core Grammar for College

Core Grammar for College

Core Grammar for College is the second in the Core Grammar Series, following the successful Core Grammar for Lawyers that was released back in 2011.

Core Grammar for College (CGC) is an online, self-directed learning tool designed to help students learn the most critical grammar conventions needed to succeed in college-level writing. CGC is not “remedial,” in that most of our students who struggle with grammar were never taught much grammar in the first place. Best of all, CGC takes a rhetorical approach to grammar: the program places grammar in context, showing how grammar makes meaning in sentences and paragraphs and how writers make grammar choices in particular rhetorical situations.

I’m pretty excited to have this tool available to both new learners of grammar and to those who want to learn the rules that underpin the grammar habits they already employ. Email me if you want to learn more about it.

On Oxford Commas and Yummy Children

Today’s skirmish in the Oxford Comma Wars comes from the New York Times Obituary of Deanna Durbin, 1930s film star.

Here’s the pertinent excerpt:

After moving to France in 1949 and settling outside Paris in the village of Neauphle-le-Château, Ms. Durbin devoted most of her time to keeping her home, cooking and raising her children.

I’ve heard of cooking and raising chickens, but not of doing the same with children.

Revising the above three-part list—making use of the Oxford comma—would impart a far less cannibalistic meaning:

Ms. Durbin devoted most of her time to keeping her home, cooking, and raising her children.

(Hat tip to Professor Eileen Kavanagh of the Thomas M. Cooley Law School.)

Stetson Law and Rhetoric Colloquium 2013

This past week, I was lucky enough to participate in the Law and Rhetoric Colloquium at Stetson University College of Law, put together by the inimitable Professor Kirsten K. Davis.

Below is the announcement of the Colloquium, which includes a picture of the participants having fun in the sun.

It was a fabulous time. Thank you Kirsten for organizing (you could run a small country with ease), and thank you Stetson Law for being such a great and gracious host.

:::::

Dear Friends,

I’m pleased to tell you about the first Law and Rhetoric Colloquium that just took place at Stetson this weekend.  A small group of scholars from both inside and outside legal academia met to discuss the connection between law and rhetoric, the future of legal education and rhetoric’s role in that future, and the possibilities for a scholarly agenda for law and rhetoric.  In addition, the group shared works and ideas in progress on topics that ranged from the intersection of rhetoric and dialectic, to rhetorically mapping supreme court traditions, to rhetorical genres in law, and to the rhetorical constraints of facilitated publics.

Stetson Participants

Above is a picture of the participants.  They included:

Front Row, L to R

  • Kristen Tiscione, Professor of Legal Research and Writing, Georgetown University School of Law
  • Colin Starger, Assistant Professor of Law, University of Baltimore  School of Law
  • Dr. J. Clarke Rountree, Chair and Professor of Communication Arts, University of Alabama, Huntsville
  • Dr. Jeff Todd, Assistant Professor of Law, Florida Coastal School of Law  (Co-organizer)
  • Dr. Jennifer Andrus, Assistant Professor, University of Utah, College of Humanities
  • Dr. Kirsten K. Davis, Professor of Law, Director of Legal Research and Writing, Stetson University College of Law (Co-organizer)

Back Row, L to R

  • Dr. Katie Rose Guest Pryal, Clinical Assistant Professor of Law, University of North Carolina School of Law
  • Julie Oseid, Associate Professor of Law, University of St. Thomas, Minneapolis School of Law
  • Francis J. Mootz, Dean and Professor of Law, University of the Pacific, McGeorge School of Law
  • Nick Scuillo, Graduate Assistant, Georgia State University Department of Communication
  • Dr. Greg Pingree, Professor of Law, Florida Coastal School of Law
  • Jack Sammons, Professor of Law, Walter F. George School of Law, Mercer University

We are hoping to expand the reach of the colloquium, start a listserv, and begin a law and rhetoric blog.

Kirsten

Kirsten K. Davis, J.D., Ph. D.

Professor of Law

Director of Legal Research and Writing

Stetson University College of Law

1401 61st Street South

Gulfport, FL  33707

On Page Limits and Concision

At the beginning of every school year, my legal writing students face a double, daunting challenge: to learn to write about a topic they are unfamiliar with (the law) in a dialect that they are unfamiliar with (legal discourse). They go bananas when I tell them they must do so as concisely as possible.

(I say “go bananas” with the utmost love and affection for my students.)

Basically, when I put a strict word limit on the first major writing assignment, my students inevitably–every year, year after year–insist that the assignment cannot be completed within the limit. They struggle with concision, with the balance between precision and concision.

At one point, someone finally wails [again, I say this with affection], “Why?!? Why are you making us do this?”

Often, I pull up the rules of appellate procedure or some other rule of court and show them the very short, and very strict, page limits on court documents.

But nothing does the job as well as this recent order from a federal district judge in Florida.

Here’s how the order begins:

On August 3, 2012, the plaintiffs moved (Doc. 22) for leave to submit a motion that exceeds the page limit. The motion states, “The complex factual and legal issues involved[] make it difficult to meet the page limitation of twenty-five [] pages.” Two hours later and without leave, the plaintiffs submitted (Doc. 23) a twenty-nine-page motion. Based on the mistaken premise that this FLSA collective action presents atypically complex issues, the motion to exceed the page limit (Doc. 22) is DENIED. The motion for conditional collective status (Doc. 23) is STRICKEN.

Oy. None of my students would ever do this. If they learned anything, they learned not to turn in an assignment that breaks the word limit. Jeez.

It gets better! The judge then provides a little instruction to the poorly trained lawyer on how to edit:

A review of the proposed, twenty-nine-page motion’s commencement confirms that a modicum of informed editorial revision easily reduces the motion to twenty-five pages without a reduction in substance.

A “modicum,” people. A “modicum.”

The judge then proceeds to actually edit the first paragraph of the motion, not-so-subtly implying that the lawyer needs to get his act together. Excellent! Editing on the record.

Check out the full order here: Merryday Editing Order.

Why Health Insurance Causes Heart Problems

What follows below is a rough transcript of a conversation that I just had with a representative from my health insurance provider. I waited on hold for 15 minutes before I was able to speak with him.

Before I called, I searched extensively online for the information I needed; but, despite extensive searching, I couldn’t find the information I was looking for, which was simply this:

How much will it cost me to see my doctor?

To me, this is one of the most egregious aspects of our current medical system. No one–not the doctors, not the health insurance–can ever tell you what you will actually end up paying.

In fact, before I ever spoke to the representative, a recording told me that anything they tell me on the phone is subject to later review, and that they would not be bound by any quotes or other money information that they give out during the phone call.

Tangent: That recorded message is like those trucks with signs on the back that tell you to stay back 200 feet because they’re not responsible if rocks flying out of the back of the truck break your windshield. You might not have a choice but to follow that truck–or get close to it at a stop light–but hey, they’re not responsible. (That sign doesn’t hold up in court, by the way.)

Asterisks [*] note medical insurance jargon that the average person probably doesn’t know. Jargon is one way of obscuring unfortunate or egregious policies, and of putting off complainers by making them feel insignificant or stupid. (That strategy doesn’t work with me, or most lawyers I know. It just makes us angry. See infra.)

Without further ado, let’s see how easy it was to find out how much it will cost me to see my doctor.

: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :

Me: My doctor is leaving the hospital where she used to work in a clinic. She’s opening her own clinic at a new site. I need to know how much it will cost me to see her there.

Health Insurance Dude: Will she be a participating provider*?

Me: I don’t know. I’ll pay her, and then I’ll file with you.

HID: Then she’s not a participating provider.

Me: So you require doctors to do the paperwork?

HID: Yes.

[I'm thinking: That's an interesting way to pass on a cost to the provider.]

Me: Okay. So how much will it cost to see her?

HID: [Reading from a script] You are approved for 26 visits per calendar year. If you would ilke more than 26 visits per calendar year you must file a request for extended coverage with the proper department—-

Me: I already read that online. I need to know how much it will cost to see my doctor.

HID: Your plan requires a 40% coinsurance* per visit.

Me: So you’ll pay 60% of the cost of the visit?

[I'm feeling pretty good about this, at this point. I can pay 40% of her bill, that'll be like $90.]

HID: That’s correct. We pay 60% of the allowable* per visit.

Me: The allowable? [I'm thinking: uh-oh.] Well, what’s the allowable for a one-hour visit?

HID: I can’t tell you that.

Me: Why not?

HID: I don’t know the code.*

Me: What code?

HID: I don’t know how she will code the visit.

Me: How do I find out the code?

HID: I will be happy to call your provider to find out the code and then provide that information to you.

[I'm thinking: I just spent 15 minutes on hold waiting to speak to this guy. No way I'm hanging up now.]

Me: I have a Explanation of Benefits* from an earlier visit with her. Can you figure out the code from that?

HID: Yes.

[I read him some numbers. He looks up a code. All of my visits have had the same code. I ask him to presume that future visits will be coded the same way.]

Me: So what is the allowable for that code?

HID: $98.

[FYI: My doctor charges $216 for the one-hour visit.]

Me: So you will pay 60% of $98 for a $216 visit.

HID: Yes.

Me: That’s highway robbery.

HID: I’m sorry you feel that way.

Me: No, really. It’s not an opinion. That’s an objective observation.

HID: I’m sorry you feel that way.

Me: @#$%!@$^%$^#%^.

THE END.

: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :

Despite the colorful ending, the point of this story is not to argue about how much doctors should be charging or how much insurance companies should be paying.

The point is to point out the obfuscation. The (deliberate?) hiding of information. It is difficult to complain about a price structure when no one can figure out just what the price structure is.

Transparency, people. That’s all I’m asking for at this point.

Legalese in Email Signatures

Setting aside the implications* of this sort of email signature, I wanted to make a suggestion to all lawyers out there: please remove the obfuscating legalese from your “do not read this” email signature notes. Here’s an example:

IMPORTANT: This email transmission, including any attachment, has been sent by or on behalf of a lawyer or law firm and is intended only for the use of the individual or entity to which it is addressed.  It may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this communication is not the intended recipient, or the employee or agency responsible for delivering the communication to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify me immediately by email or telephone and delete this communication and all copies. Thank you.

This message not only alienates its readers, making it less likely that they will do what you ask, it also confuses them, making it even less likely that they will do what you ask.

Seriously, “email transmission”? What’s wrong with “email”?

“By or on behalf of a lawyer or law firm”? Don’t law firms include lawyers? Can’t we just scratch that part?

“[U]se of the individual or entity to which it is addressed”? How about “use of the addressee”?

What exactly does “exempt from disclosure” mean? Do it mean anything different from “confidential” or “privileged”?

Why must we specify “applicable law”? Isn’t “under law” good enough?

The above email signature–which I’ve seen in exactly this form hundreds of times–is terrible. So, I’m going to do a public service and revise it using Plain English, and suggest that all my lawyer friends use the following signature instead:

IMPORTANT: This email, including any attachments, comes from a lawyer. It should only be read by the intended recipient, because this email may contain information that is privileged or confidential under law. Therefore, if you are not the intended recipient, please do not distribute this email, for that might be against the law. If you have received this email in error, please notify me immediately by email or telephone and delete this email. Thank you very much, and I apologize for the trouble I may have caused.

How about you? Can you make it even better? Better = less cloudy and more likely to have the intended effect on its audience.

(*The implications of course, include these: the lawyer screwed up an email address; the lawyer didn’t proofread the email and sent it to the wrong person; the lawyer was gulled into giving up his/her email password by phishers. Hence the apology at the end of the revised signature.)

Sunlight and Law School

As surprising as it is, the class action law suit against New York Law School seems to fit right in with the recent trend of criticizing law schools for misrepresenting (1) scholarships, (2) grads’ employment rates, (3) average grads’ salaries, and (4) any number of things.

The complaint is nicely written. I’m going to provide it to my legal writing students as an example of an elegant document.

In particular, the preliminary statement appealed to my literature sensibilities.

PRELIMINARY STATEMENT

“Sunlight is the Best Disinfectant” – Justice Louis Brandeis.

This action seeks to remedy a systemic, ongoing fraud that is ubiquitous in the
legal education industry and threatens to leave a generation of law students in dire financial straits. Essentially, Plaintiffs want to bring an element of “sunlight” or transparency to the way law schools report post-graduate employment data and salary information, by requiring that they make critical, material disclosures that will give both prospective and current students a more accurate picture of their post-graduate financial situation, as opposed to the status quo where law schools are incentivized to engage in all sorts of legerdemain when tabulating employment statistics.

[Download the Full Complaint]

I love the use of Brandeis’s metaphor.

I would quibble with some vocabulary choices, however.

(1) ubiquitous: I think “widespread” would have been more useful here. “Widespread fraud” sounds really bad, indeed worse than does “ubiquitous fraud.”
(2) incentivized: I hate this word. This is a post-industrial Dilbert make-work word. Cut “are incentivized to” altogether from this sentence and you get this: “where law schools engage in all sorts of legerdemain…”. In fact, “are incentivized to” actually removes some liability from the defendant and places it upon some unnamed institutional force that isn’t liable here.
(3) legerdemain: I love it. But I speak French. Anyone else? Any illusionists out there? Would “sleight of hand” be better?

Marbury v. Madison Wordle

I couldn’t resist:

Marbury Wordle.jpg

Unfortunately, the Marbury v. Madison word cloud wasn’t nearly as fun as the Clinton speech in my last post.

“Commission,” right in the middle, is kind of a bummer for such a transformative case. Yes, the case is about a commission that should or should not be granted. And the gigantic “law” to the left is a bit of a gimme, as is the “constitution” below it.

Of course, the fact that the word cloud comes out as one thinks it should means that the author is saying what one thinks the author is saying. Which is a good thing. (If less fun.)

In other words, if the visual depiction of the communication (created by the word cloud) aligns with one’s understanding of the communication, then that’s a good thing, because the author is avoiding double-speak, equivocation, or outright misleading speech.

Still, the ones that are startling in their mismatch with one’s expectations are a lot more fun.