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 - 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.