Saturday, August 20, 2011

Advice to a Young Would-Be Patent Law Scholar - 05 (NEVER and ALWAYS)

What about all those rules that begin NEVER or ALWAYS?

For example, my own invention is "NEVER use 'clearly' or 'merely' more than once in ever 25 pages."

What does that rule do? It probably does NOT make you count how many pages between your first and second use of MERELY. But it probably DOES make you self-conscious every time you write either of those words. And that is the reason for NEVER and ALWAYS rules. They lie in wait, pouncing on you when you violate them. Maybe you can convince yourself that violating them is OK this once. I manage to do that, from time to time. But every time you read the violating text, your inner voice will say "Really? You just HAD to do that? You couldn't find a way around it?" And sometimes you, or I, reply, "Silence! Yes, violating the rule this once was brilliant. But I won't do it again, I promise. Or anyway, not this year."


By the way, for more on merely/clearly, see MERELY/CLEARLY.

A friend (OK, Terry Kearny, then at Fish & Neave, now at Latham Watkins) once told me he'd been taught NEVER to use Moreover or Furthermore. I use them, but again, I cannot do so without remembering Terry. He, and his teachers, were correct about these words. I appreciate that often they are used because the author has not organized the presentation with enough care, or has not figured out how to marshal those 'more' facts in the most persuasive way.

Advice to a Young Would-Be Patent Law Scholar - 04 (NUMBERS and DATES)


Yes, my teachers taught me that the numbers from zero to twenty should ALWAYS be spelled out in words. For 21 and higher, use digits.
See NEVER for how to cope with writing rules that begin NEVER or ALWAYS.
But "to spell or not to spell" is not the beginning of the story, it is the end. First, the writer must decide whether to use numbers at all.

Only Use Numbers If You Absolutely Need To

As a new associate fresh out of law school, I learned from White & Case partner David Hartfield (d. 1983) that you do not use specific numbers unless you really need that level of specificity. Hartfield explained that the reason to avoid numbers is that they are too noticeable. They catch the reader's eye. If you absolutely must convey to the reader that it was 75,608 lemons, not a lemon more nor a lemon less, OK, go ahead and state the number. But if all the reader needs to know is 'thousands and thousands of lemons,' it's an unnecessary distraction to write 75,608. Hartfield convinced me. And ever since, I consider the unnecessary inclusion of precise numbers to be as much a sin as the unjustifiable failure to provide precise numbers.

Dates are another kind of number you should strive to omit. It is rare that the month, day and year really matter. For example, consider an event that happened on April 9, 1923. If four related events occurred on April 8 (aka the day before), April 10 (aka the day after), April 16 (aka exactly a week later), and on Mother's Day 1924 (aka a little over a year later), then perhaps using the precise dates is the easiest and fastest way to communicate the information. If, however, there are no related events, and all that matters is that something happened between the two world wars or during the Roaring Twenties, then we do not need to know 1923, let alone April, and we certainly don't need to know 9.



Lawyers and judges often use exact dates in briefs and opinions when they don't need to. The year may be relevant but sometimes even it can be omitted. Relative time is often what matters: did the next thing happen before the week was out? Or in less than a year? Or had more than two decades elapsed? To express the temporal relationship between what began in January and was completed in May, you could write "X happened and some months later Y happened" rather than naming the months. Of course, if the story turns on the cold weather getting warmer or the long nights becoming shorter, then specifying January and May may be helpful. But maybe not. Good writing means thinking about everything you ask the reader to read: every word, every number, every date.

Use Tables for Chronologies

When I teach, I use my own materials and I edit just about everything, including descriptions of the sequence of events in R&D, the PTO or the courts. I revise chronologies for several reasons. First, the court may jump around rather than time-ordering the facts. Usually that slows down the reader more than it helps. Second, judges write paragraphs. I prefer tables for things like chronologies: Dates go in the left column and events in the right. Time marches down the page. Events can be described in phrases rather than sentences. Extra columns can be added for, say, the actor or, in a chronology of litigation rulings, the winner.

Yes, many intelligent people find tables daunting. But people interested in patent law are usually visual thinkers who process information in tabular form quickly. We make connections faster and we find things jumping off the page more readily from a compact table than from pages of narrative. Which do you like better: the chronologies in my edited versions of KSR v. TELEFLEX or Sanofi v. Apotex or in the originals, 550 US 398 (2007) and 550 F.3d 1075 (Fed. Cir. 2008)?

Rev. 3/7,8/15

Advice to a Young Would-Be Patent Law Scholar - 03 (PARAGRAPHS)

Item 1 of my Advice to a Young Would-Be Patent Law Scholar - 01, referred to PARAGRAPHS without much explanation. That was for two reasons. First, the basis of the post was a message to a young scholar to whom I had previously written extensively on the subject of paragraphing.  Second, I assumed that readers of this blog would know what a paragraph should be, even if they didn't always apply that knowledge to their own legal writing.

Here, for completeness, is a somewhat revised version of what I had written to that student back when I first gave nerfeedback on nis writing.

1. A paragraph should have one central idea, just one, and that idea should be new to someone reading your paper from the first word to the last. That is how I read. I call people like me "linear readers". We do not skip around and we do not do word search. We place ourselves in the author's hands, trusting ner to have thought through the subject so that it is presented in the best possible way. We do, however, skim -- especially if we begin to feel that our trust is misplaced -- and that is precisely the reason you, as an author, need to use paragraphs properly.

2. If you find that your paragraph has two ideas, break up that paragraph.

Wait, you say. What about a summary or an introductory paragraph? OK. Such paragraphs may list a series of ideas, but then the central idea of the paragraph is to summarize or introduce. The substantive content in the list is not the paragraph's central idea. I should add that I am not a fan of summary or introductory paragraphs with lists. As a linear skimmer, I prefer a table of contents, aka outline, at the top of the article, so that I can see the ideas; in the body of the article, I prefer headings. I think a table of contents and headings are also helpful for non-linear readers, especially word-searchers. But for now, if the one-idea-rule troubles you, please read item 2 to mean "other than an introductory or summary paragraph."

3. If you find that a paragraph repeats an idea that you presented earlier, incorporate whatever is worth saying into the earlier paragraph, or revise what you say in the later paragraph so that it does not seem redundant to the linear reader. And yes, this is harder than it sounds. It takes some deep thinking. You will have to ask yourself why you did not include these ideas earlier, and why you want to have them at this later point. Maybe you will have to do some serious restructuring. Do it. And of course, use the TALK METHOD to decide what you want to say, that is, to WRITE.

4. Begin each paragraph with a topic sentence. My high school English teachers said the topic sentence did not necessarily have to be first; it could be in the middle of the paragraph or even at the end. That may be fine for fiction, but in legal writing, where your serious readers will likely be linear skimmers, never put the topic sentence anywhere but at the beginning.
If you can point to a good paragraph in a law review article that violates this rule, please tell me, and give me the text of that paragraph so I can form my own opinion.
5. Avoid long paragraphs. (See items 1 and 2 above to understand how easy that is when you are writing well.) In law review article format, a page should have 2 or 3 paragraphs. I count paragraphs by where they start. A carryover paragraph does not count as the first paragraph of that page. It is zero.
(See the Advice post about NUMBERS for the reason I chose to write 2 or 3 as numerals in the first sentence of item 5, but then wrote zero as a word zero in the last sentence.  See the Advice post concerning rules for writing that begin "Never" or "Always" for my views about the value of those rules.)
A page without any break, that is, one that has a paragraph that began on a previous page and ends on a subsequent one, is never acceptable. A page with a carryover and then only one new paragraph needs is not, either. More than three paragraphs on a page probably (though not always) means your writing is choppy and you are not synthesizing enough. If you have a good reason for writing short paragraphs or your paragraphs are actually bullet points, that may be fine. Maybe.
***
After you have a first draft, check every page and paragraph to make sure they meet these requirements. Soon, your paragraphs will naturally have the right length, and each one will be unified and will introduce a new idea, if not in your first draft, then in your second or third.

[last rev 9/12/11 - rjm]

Advice to a Young Would-Be Patent Law Scholar - 02

Some Background to My Advice to a Young Would-Be Patent Law Scholar - 01

When I read most law review articles, I wonder if the authors subconsciously believe
  • that the truth is not important,
  • that good organization of the writing is something nobody wants, and
  • that thinking the ideas through thoroughly is not necessary.
That certainly seems to explain the results.  People who are highly intelligent and accomplished are content, even proud, of their legal scholarship despite its poor quality.

These authors think that it is enough to set forth an interesting new idea, no matter whether half-baked or based on misunderstanding.  They assume that nobody will jump down their throats if they make a mistake.  And of course they know that there is little danger that a student law review editor will know enough to recognize mistakes.  (More peer review would help, provided the peers were practitioners with excellent writing skills.  Peer review by other legal academics will not necessarily do very much, for the reasons set forth below.)

Legal academics may have accurately gauged their readership.  Few people read law review articles word for word. Most, whether other scholars, litigators or judges, word search for something specific and read no further.  But for hiring and promotion, someone may read from page one to the end.  For that reader, substandard work could be a problem for the author.

But legal academics, especially younger ones, are hampered by the people to whom they go for help: their own law professors.

Unfortunately, law professors may not have had adequate training in good writing.  Some may have had excellent legal writing courses as 1Ls, wonderful high school English teachers, or a college professor who taught them to write.  But my observation is that most were not so lucky.

In addition, legal academics rarely have the opportunity to learn good legal writing from a great practicing lawyer. Usually their own law practice has been limited to a couple of years in a large firm. Working on research  memos and document production does not make for excellence in writing.  Even a judicial clerkship may not be the best preparation, especially if the former clerk does not view scholarship as requiring the same high standards as nis judge expected .   Then, too, a judicial opinion can borrow from the parties' briefs and has an inherent organization:  there is a question in the motion or appeal that must be answered.  A law review article author must develop nis own structure to present nis new idea in the most persuasive and compelling way.

The best writing training I received was when I wrote drafts of briefs for top litigators who demanded the highest standards.  This group included Eric Woglom, Ken Herman, Bob Morgan, and David J. Lee, all partners at Fish & Neave in the 1980s, and earlier, David Hartfield at White & Case in the 1970s. The other major source of my confidence about writing comes from what I learned from my husband, Phil Bucksbaum, who in turn learned from his Ph.D. adviser, Eugene Commins, whose father, Saxe Commins, had been an editor for such famous writers as Eugene O'Neill and William Faulkner.  Saxe taught Gene taught Phil, and I have always taken Phil's advice to heart.  I know of few academic authors who were as lucky as I in their writing mentors.

Of course, I have also always been a serious reader.  When I read, I hear.  No, I don't read audiobooks.  I mean that when I see words on a page or a screen, they somehow come through my ears rather than my eyes.  I find that people who write poorly do not hear their own writing.  Once they train themselves to do that, their writing improves.  See an upcoming post on the TALK METHOD for good writing, too, because that uses what we instinctively do when we speak to make our writing better.

A law professor given a draft of a student paper or article may try to catch the basic idea, but is not likely to see nis role as instructing on structure, paragraphing, and other basic aspects of writing.  Law professors may also lack the time, if not the inclination, to train  young scholars to write right.  True, it is a very time-consuming undertaking.

That is why I have started this series, Advice to a Young Would-Be Patent Law Scholar.  Now, when someone asks me for comments, at least some of my reply can be in links.
8/20/11 rjm
rev 11/6/11

Advice to a Young Would-Be Patent Law Scholar - 01

A while ago a law student asked me to look over a draft law review article ne had written.  Nis draft was about 50 pages.  My comments were about 25 pages.  I liked ner very much or I wouldn't have bothered.  Ne was intelligent and eager to do things to the best of nis substantial ability.

More recently, ne asked me to look at another paper.  I wasn't able to spend another forty-odd hours writing comments, so I just sent ner these reminders:

1. Remember what a paragraph is, and remember to police yourself on your paragraphing, from the first draft on, in EVERY revision!

2. Remember to use words accurately.  (I write UWA in the margins of many a student exam, and think it regularly as I read novels and news articles.)  If you can't think of the right word, NEVER EVER write down something you know is not quite right.  Instead, ALWAYS write _____. That will remind you to find the right word before you are done.

3. Remember never to write anything you're not 100% sure of.  If you have any doubt, check it out! If you can't manage to wrestle the thing to the ground, either omit it, change what you say about it, or come up with a hedge.

4. Have an outline VISIBLE at the top of your paper, from the very first draft.  Read it every time you do a revision, and revise it every time you change a heading in your paper. (A good paper, by the way, should have at least one heading every two pages in standard format.  This makes it skimmable for the reader, and reminds the writer what nis purpose is.)   Keep the outline as
current as your thinking.

5. TALK FIRST, write second.  If you can't talk what you want to say, you will write it poorly.  You will not have thought it through.  If you can't think without writing (I sometimes have this problem), write until you think you know what you want to say. Do this in SMALL sections, not the whole paper.  Then TALK IT.  Then throw out what you wrote before you talked it out, and write what you talked.  (Stay tuned for more about the TALK METHOD in a future posting.)

6. The theory behind instructions 1 through 5 is that an article on patent law should be written with the same scrupulous honesty and thoroughness as a brief for a patent savvy judge in a lawsuit where opposing counsel has outstanding depth and breadth of experience in patent
law.  That is, imagine that your article will be read by a  lawyer who will find your every error and weakness,  one who has done prosecution, counseling, pre-trial, trial, and appellate work, and has an encyclopedic memory of  40 years of experience, as well as everything ne learned from nis mentors, and who, you can be sure, will use your errors and omissions to win nis case.

Too many people write articles as if the truth is not important.  As if a clear organization to the writing is something nobody would miss.   As if thinking thoroughly is not a requirement.   These authors think that it is enough to set forth an interesting new idea, no matter whether half-baked or based on misunderstanding.  They assume that nobody will jump down their throats if they make a mistake.  (And they know that there is little danger that student law review editors will know enough to recognize mistakes.)  These authors may have accurately gauged their readership.  Few people read law review articles word for word; most, whether other scholars, litigators or judges, word search for something specific and read no further.  But for hiring and promotion, someone may read from page one to the end and might just notice the poor quality work.

Unfortunately, too, many academic authors have not themselves had much training by top litigators or legal writers who demand the highest standards.  When a young scholar gives them a draft, they may try to catch the basic idea, but not otherwise give ner instructive comments. Often, their own law practice has been limited to a couple of years in a large firm. Working on research  memos and document production is not the best training for becoming an excellent writer.  Even a judicial clerkship may not be the best preparation, especially if the former clerk does not view scholarship as requiring the same high standards as judicial writing.  Law professors may also lack the time, if not the inclination, to train  young scholars to write right.  It is a time-consuming undertaking.

If, however, you learn to hold yourself to a high standard, you will soar to the top.  Your readers, whether practitioners or academics, will notice the difference between you and the rest of the pack.