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.