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.