Lawyers as Surgeons

Attorney Scott Greenfield discusses in a recent post at Simple Justice the difference in research styles between attorneys who were trained before the Internet age and their younger brethren:

It was fairly common to find me in the early 1980s sitting at the big library table in old Milt Rosenberg’s office with a few stacks of books in front of me.  Trying to find a case on point often began with Corpus Juris Secundum, which separated headnotes by West’s key system. The trick to finding something spectacular was to always check a few key notes before and after the one that should be on point.  Don’t trust whomever categorized the headnotes, but check cases that were close because you never knew what you would find.
But that doesn’t happen anymore. That’s not how one researches law today. Instead, we frame Boolean searches to zero in on precisely what we’re looking for, and nothing more. There’s no leafing through the pages before and after, just because. There’s no way to do so on a computer.

In the early 1980s, I wasn't sitting at a library table digging through the CJS looking for cases. I was wearing diapers. But I was alive then, which is important to note because I, as a person in his mid-30s in 2016, occupy a weird temporal borderland between those nefarious "Millennials" and older generations such as Gen X or my parents, the Boomers.

When I started my educational journey through middle and high school, there was no Internet. "Boolean" meant nothing to anyone but the scientists at DARPA. It wasn't until I reached undergrad in the late 1990s that I had any kind of regular exposure to the Internet. By that time, I had already formulated methods of research and study that weren't anything like they are today. I remember what books smell like, and the frustrating sting of paper cuts.

Luckily, and unlike our parents in many ways, members of my little generational niche - those who straddled the transition from the pre-Internet stone age to our contemporary technological paradise - felt little pain in adjusting. We took to the Internet quite well and embraced our roles as technological Users with gusto. We're not the old fuddy-duddies who still gingerly touch the screens of their phones as if they might be hot. We are the original Early Adopters.

The Internet exploded into dominance when we were still young enough to be receptive to figuring it out, and we weren't particularly wedded to old methods of study or learning. But we did have exposure to those old methods, so some of us - at least I - still appreciate them.

As Greenfield points out, the old way you had to research the law was inefficient but had great value. You were prone to discover and learn a lot more than you set out to find in the first place. That method of researching the law is the same method I learned as an impressionable young student buried in the library digging up sources for high school research papers the old fashioned way.

Perhaps it is for that reason that I often get "distracted" in my legal research. I have a tendency to fall into a "Shepard's hole" (as I call it), which means I will start with a search for certain key terms or a particular statute and locate a relatively useful case, but then find myself an hour later reading a case that never showed up in the search results and is separated by four levels of citation from the the case I originally started reading.

It goes something like this:

My search terms reveal Case A, which is OK but not anything fancy. I Shepardize to make sure the case has not been overruled and notice Case A was cited by Case B in another jurisdiction, so I read Case B. Case B includes a closely-related issue and some useful language that comes from Case C. So I check Case C and find it's been cited by a judge in my jurisdiction in Case D. Sure enough, Case D is extremely helpful, even though it's not precisely on point in a way that my search terms would have revealed.

What this means is that I effectively still "leaf along the pages," albeit in a different way than used to be possible. A lot of attorneys (or judges) don't do this, and you'll often see in opposing briefs or opinions one or two very surgical citations with no extra context or useful examples even though they're out there. That's a shame, because attorneys should do more than just make sure their cited cases are still good law ("Sherpardizing" in its most clinical form). It's good to go outside the bounds of your narrow search logic to find the additional context for the legal issue you're researching.

Granted, it's not always useful. Sometimes you waste a bunch of time finding nothing of value and realize later you should have just stuck to your original search terms and the two cases they produced. But in my experience, more extensive browsing has been more successful than not.

I wonder sometimes whether I would still research like this had I not been raised in the old, different world Greenfield remembers clearly. It is certainly more difficult now than it was. Legal research is more surgical and the tools we use to cut through the law to find what we need do not incentivize broader investigations the way the old case books did.

But I like to believe that some of us younger attorneys are not quite the surgeons that our even younger colleagues have been molded by the Internet to be. Some of us still leaf through the pages, and our clients are better off because of it.

Typography for Lawyers 2.0

If there's one thing I'm a casual nerd about, it's typography. I'm aggressively literate and spend most of my time reading and writing. When I read, I prefer a well-crafted page where the words flow smoothly and comprehending the message is not a tiresome task.

Lawyers are notorious for their clunky, cumbersome writing. "Legalese" and unnecessary string citations can obfuscate an otherwise strong argument, and can bore (or worse, confuse) the reader. But lawyers aren't just bad when it comes to content. They're also bad when it comes to format. Legal writing typically appears in the following form:

  •     8.5 x 11 paper with 1 inch margins on all sides
  •     12-14 point Times New Roman or Courier New
  •     Text simultaneously bold, italicized, and underlined for emphasis
  •     Left justification
  •     Confusing hierarchical headings (I. A. i. 1.)

This is fine, as a minimum standard. As long as you write in a language that the reader understands (some of us are actually fluent in legalese), you're at least doing okay.

But typical legal writing could be much, much better. It could actually take the reader's needs into consideration and be organized and presented in a way that assists understanding rather than frustrates it. Unfortunately, most lawyers do not care about this or actively work against any kind of change.

Matthew Butterick is not one of those lawyers. In fact, he's carved out a niche as the lawyer fighting against crappy aesthetics in legal writing. In 2010, the first version of his book Typography for Lawyers was released upon the world. It was well-received, and rightly so. It provided, in a clear and attractive way, useful advice on type composition (punctuation, symbols, signatures, hyphens, line breaks), text formatting, page composition, and fonts (my personal favorite topic).

It wasn't until I read Butterick's book that I started caring a lot about how my court pleadings and correspondence look. Upon his advice, I use bigger margins. I try, whenever possible, to use numerical headings with decimals rather than alternating letters and numbers. I also use better fonts than Times New Roman when I write motions, briefs, and letters. For motions and briefs, I use a font called Eldorado that looks classically bookish and highly readable. For letters, I use the ever-awesome Sabon, which is probably the greatest font ever (sorry, Helvetica). Sometimes court rules or the preferences of my colleagues trump my choices, but, when I'm free to do so, I adhere to better typographical principles.

I also followed Butterick's advice when I designed the layout of this web site. You'll notice that the blog text is very narrow with wide margins, with large, readable fonts for the headings and body. This was done on purpose. There are some really good blogs with really bad layouts that still use tiny default fonts with text that expands to the edges of the screen. With monitor resolutions now as high as 1440 or even 2160, some blogs are almost unreadable. Butterick helped me to avoid being a casualty of new technology by using classic typographical techniques.

Now, Butterick has updated Typography for Lawyers and I just received an advanced review copy of the second edition (free stuff is the best stuff).

Immediately I noticed a big change between the first and second editions: a new font on the cover! Butterick has actually taken the time to craft his own fonts for use in legal writing, and he used his newest one, Advocate, on the cover. His other fonts, Equity, Concourse, and Triplicate are used throughout the book. To be honest, I'm not crazy about Advocate, but it's perfectly bold and readable and gives the second edition a fresh new look.

There are other changes in the new edition. For example, Butterick has removed some of his punctuation advice (regarding question marks and semicolons) as well as a funny "Note to Argumentative Readers" that graced page 44 of the first edition. But the changes are good - he adds new content and context in other sections to bolster his arguments or clarify his advice.

The most noticeable change was a major overhaul of his list of recommended fonts. He has moved Lyon from being a suggested replacement for Georgia to a suggested replacement for Palatino (which is the font used by the Seventh Circuit Court of Appeals in all their decisions). He has also swapped out Starling and Plantin for Tiempos and Verdigris as alternatives to Times New Roman. And speaking of which, he has moved the illuminating "A Brief History of Times New Roman" to a new spot within the font lists, rather than several pages before. It flows better now in its new place and functions as a useful aside.

Two changes are for the worse, however. First, Eldorado no longer makes his list of recommended fonts. Second, Sabon has also been cut, which is an inexcusable mistake that I trust Butterick will rectify in the third edition.

I haven't noticed all the changes from the first to the second edition of Typography for Lawyers, but the changes I've noticed are, for the most part, improvements. Even the changes I don't particularly care for don't really detract from the excellence of the book. The book remains something I will often recommend to other lawyers (and writers in general).

Butterick is here to help. Please, lawyers, fix your barely adequate motions, briefs, and letters and help make the difficult practice of reading the law a little bit more pleasant for everyone.

Accepted at Last

I took a seminar on employment law during my last semester of law school in early 2012. The final grade for that class was based primarily on the writing of a law review article. For my article, I chose the topic of Kentucky employment retaliation law, something I was familiar with from my clerking for Clay Daniel Walton & Adams attorney Dan Canon (once my boss, now my colleague).

The paper took weeks to research and write and I got a good grade on it. My teacher, UofL Law professor Ariana Levinson, encouraged me to seek publication. I was wary because I was never on the law review during school and my topic was very narrowly focused on recent case law in just one state. How many law reviews would be interested? Perhaps just three (each law school in Kentucky has its own review, and Northern Kentucky had previously published work similar to my own).

I graduated, took the bar exam and passed, then got busy working as an attorney. The paper sat dormant for months. As a survey of recent case law, the passing time made the paper less accurate the longer it remained unfinished.

Finally, in late 2013, I picked it up again and began revisions. I had worked on more retaliation cases since I began my law practice, so had a better understanding of the issues and impact of each case I discussed. I had also improved my legal writing (at least in my own opinion). The revision and updating process took a few more weeks. By January of this year, I felt I had sufficiently polished it to try for publication.

I submitted the paper to the three main Kentucky law reviews - Louisville, Kentucky, and Northern Kentucky. I heard nothing for months. Then, in June, I presented the paper and associated topics on retaliation law at the annual Warns-Render Institute conference here in Louisville. My talk (with the help of Mr. Canon) was well-received.

Shortly after, I finally got the news I had been waiting for: the University of Louisville Law Review wanted to print the article. I gladly accepted their offer. The article, Navigating Kentucky Employment Retaliation Law in the Wake of Brooks v. Lexington-Fayette Urban County Housing Authority, was published this week.

Academic articles are the domain of law professors. Their career success partially hinges upon how much they write and how often they are published. Attorneys in private practice publish far less often, however, usually due to a lack of time and fewer professional incentives to do so.

There is one nice incentive, though: CLE credit. In order to remain in good standing with the bar, attorneys in Kentucky must get a large number of CLE credits each year. Conveniently, the Kentucky Bar Association awards up to six Continuing Legal Education hours for published legal writing. That's a nice bonus to the intellectual glory of appearing in a scholarly journal.

Because I am aggressively literate, I have another academic paper in the works. And because I am busy in my law practice, it sits dormant most of the time, gathering whatever the digital equivalent of dust might be. Hopefully soon I'll be able to get back at it. I'm the kind of weirdo who loves this stuff.

Spending Time With the Yutes

In the last couple of months, I've had the distinct pleasure to speak to local high school students about my work on the Kentucky marriage equality cases Bourke v. Beshear and Love v. Beshear. I first spoke to student journalists at Manual High School, and then today I spoke to members of the Gay/Straight Alliance at Pleasure Ridge Park High School. I had a great time discussing the cases and answering the extremely intelligent and perceptive questions the students had for me.

Any time I get to speak with students, I jump at the chance. I love their thirst for information, and the curiousness with which they approach all topics. They're just now becoming adults, and many of them haven't yet settled into intellectual or emotional autopilot like so many older people. They are still curious about life, society, each other, and themselves. The world is confusing, but they're mentally developed enough to ask perceptive questions and process complicated ideas and issues.

The students at Manual and PRP asked excellent questions. Though federal civil procedure and constitutional law are deeply complicated (and boring) topics, every student seemed engaged and interested, and they understood the underlying issues in a way I think many adults never will. These kids are blessed to not carry the baggage that previous generations still carry: Jim Crow, segregation, busing riots, the first years of AIDS, nationwide prohibition of same sex marriage, etc. Teenagers today are fully digital, exposed to different lifestyles and different ways of thinking - the full complexity of our society - from the very beginning. They are curious and insightful and take many still-controversial issues in stride.

I often feel despondent about the world, and about regressive movements in our society. But knowing there are so many smart, perceptive, and empathetic "yutes" among us (and great teachers, like Jamie Miller at Manual and Jason Linden at PRP, nurturing them), I feel a lot more optimistic. Maybe we're all going to be OK.