Workshop for Beginning Legal Writing Teachers - AALS

the improvement of the legal profession 

through legal education 

a s s o c i a t i o n o f a m e r i c a n l a w s c h o o l s 

Workshop for Beginning Legal 

Writing Teachers 

June 22 – 23, 2011 

Washington, D.C.

Workshop for Beginning Legal Writing Teachers 

June 22-23, 2011 

Washington, DC 

TABLE OF CONTENTS 

Page 

Welcome ...................................................................................................................5 

Sponsors of the Association of American Law Schools ............................................7 

Program ....................................................................................................................9 

Committee on Professional Development and Workshop Planning Committee .....13 

Biographies of Speakers ........................................................................................15 

Discussion Outlines and Materials 

Christy Hallam DeSanctis .......................................................................................21 

Diana R. Donahoe ..................................................................................................23 

Mary Beth Beazley .................................................................................................25 

Victoria L. VanZandt ...............................................................................................31 

Anne M. Enquist .....................................................................................................35 

Michael R. Smith ....................................................................................................53 

Amy E. Sloan ..........................................................................................................57 

Other Information 

Blank Pages for Notes ............................................................................................63 

Hotel Floor Plan ......................................................................................................66 

IMPORTANT 

The Evaluation Form is not included in this booklet. It will be emailed to you soon 

after the conclusion of the workshop. 

Your comments will assist us in planning future workshops.

Welcome 

5 


On behalf of the Planning Committee, I welcome you to the 2011 AALS Workshop for 

Beginning Legal Writing Teachers. Some of you will be teaching legal writing in addition to 

other subjects. Others of you will focus all your teaching energies on legal writing. Every 

one of you will be teaching what may be the most challenging subject in the law school 

curriculum. Each of the experienced professors who have graciously given of their summer 

to be here welcomes the opportunity to introduce you to a discipline that is vital to the 

mission of every American law school. 

Legal writing is uniquely challenging to teach because it requires the combined skills 

of good writing and good legal thinking. Legal writing teachers must elicit the analytical 

thinking that is essential to effective legal problem solving at the same time they guide 

their students in how best to present legal analysis or argument in a finished document. 

Often this effort requires the teacher to dispel a student’s preconceived notions about what 

is good writing. Although this task may seem daunting, we know from the experience of 

others that this workshop can help you navigate the challenges you will face so that you 

can more quickly enjoy the many rewards of this type of teaching. 

Our goal for this workshop is to provide the basic grounding that will enable you to prepare 

with confidence for your entry into the legal writing classroom. After this, as you gain 

experience, we trust that you will contribute your own ideas to the ongoing conversation 

about how effectively to teach legal writing. 

~Okianer Christian Dark, 

Chair, Planning Committee for AALS 


and Howard University School of Law 

Members of Planning Committee for Workshop for Beginning Legal Writing Teachers 

Darby Dickerson, Stetson University College of Law 

Luz E. Herrera, Thomas Jefferson School of Law 

Kellye Y. Testy, University of Washington School of Law

7 


Sponsors of the Association of American Law Schools 

AALS would like to thank and recognize the following organizations and law schools for 

their generous contributions to support the association’s many goals and activities. 

Foundational Gifts ($100,000 or more) 

West, a Thomson Reuters business 

Foundation Press, a Thomson Reuters business 

Printing Directory of Law Teachers, Journal of Legal Education, AALS Newsletter and 

2012 Annual Meeting Final Program 

Sponsor Gifts ($15,000 to $25,000) 

Wolters Kluwer Law & Business 

Lanyards, Badge Holders, Badge Envelopes for 2011-2012 Professional Development 

Programs and 2012 Annual Meeting and One Day of Refreshment Breaks at 

2011 Workshop for New Law School Teachers 

Contributor Gift ($10,000 to $15,000) 

Carolina Academic Press 

Financial Support of Annual Meeting 2012 Inaugural Law and Film Series 

We would like to thank the following for their donations to 

AALS for the 2011-2012 Academic Year 

Law School Admission Council (LSAC) 

Financial Support of 2011 Workshop for Pretenured People of Color 

Law School Teachers

Program 

AALS Workshop for Beginning Legal Writing Teachers 

Mayflower Renaissance Hotel 

June 22 – 23, 2011 

Washington, DC 

WEDNESDAY, JUNE 22, 2011 

9 


4:30 – 7:30 p.m. Foyer of Grand Ballroom 

Registration Lobby Level 

5:30 – 6:30 p.m. 

Concurrent Sessions 

Working with the Director Senate Room 

Lobby Level 

Facilitator: Christy Hallam DeSanctis, 

The George Washington University Law School 

This session is designed for new professors working in programs with a Director. 

Among the topics addressed in this interactive session will be how to work effectively 

with a Director and with peers in a program with a Director, differing levels of autonomy 

within programs, resources for gaining expertise as a legal writing professor, and common 

challenges for those entering the academy. 

Directorless Programs Chinese Room 

Lobby Level 

Facilitator: Diana R. Donahoe, 

Georgetown University Law Center 

This session is designed for new professors who will be working in programs without 

a Director. Among the topics addressed in this interactive session will be how to work 

effectively with other professors teaching legal writing, professors who teach other topics, 

law librarians, deans, and others within the law-school community; resources for gaining 

expertise as a legal writing professor; and common challenges for those entering the 

academy. 

6:30 – 7:30 p.m. Colonial Room 

AALS Reception Lower Lobby Level


THURSDAY, June 23, 2011 

8:30 – 8:50 a.m. Foyer of Grand Ballroom 

Coffee, Tea, Breakfast Pastry Lobby Level 

8:30 – 8:45 a.m. Grand Ballroom 

Welcome Lobby Level 

Susan Westerberg Prager, AALS Executive Director, 

Chief Executive Officers 

Introduction 

Okianer Christian Dark, Howard University School of Law and Chair, 

Planning Committee for 2011 AALS Workshop for New Law School Teachers, 

Workshop for People of Color Law School Teachers and Workshop for Beginning 

Legal Writing Teachers 


Plenary Session – Legal Writing in the Academy Lobby Level 

Mary Beth Beazley, The Ohio State University Michael E. Moritz College of Law 

Professor Beazley will engage the group in a discussion that includes a brief history of 

legal writing programs in the United States, the role and status of legal writing within the 

academy, challenges that may face those teaching legal writing, and emerging opportunities 

for legal-writing professionals to influence the future of legal education. 

9:45 – 10:45 a.m. 

Plenary Session – Designing Assignments Grand Ballroom 

and Assessments Lobby Level 

Victoria L. VanZandt, University of Dayton School of Law 

Designing legal-writing assignments is an important and challenging task. Professor 

VanZandt will discuss the hallmarks of an effective assignment, methods for constructing 

sound assignments, techniques to design effective assessment tools, and how to 

avoid common pitfalls in designing both assignments and assessments. 

10:45 – 11:00 a.m. Foyer of Grand Ballroom 

Refreshment Break Lobby Level 

10

Thursday, June 23, continued 


Plenary Session – Critiquing and Feedback Lobby Level 

Anne M. Enquist, Seattle University School of Law 

11 


One of the most challenging, time-consuming, and important aspects of teaching legal 

writing is providing effective feedback on assignments. Professor Enquist will explore 

approaches to critiquing, challenges new professors may face, and methods for critiquing 

efficiently and effectively. 

12:00 – 1:30 pm 

Small Group Discussions – Critiquing Workshops 

Box lunches will be served and attendees will break into small group discussions. 

See the handout in your workshop materials for your small group discussion assignment 

and its meeting room location. 

Facilitators— 

Mary Beth Beazley, The Ohio State University, Michael E. Moritz College of Law 

Sha-Shana Crichton, Howard University School of Law 

Anne M. Enquist, Seattle University School of Law 

Amy E. Sloan, University of Baltimore School of Law 

Robin S. Wellford-Slocum, Chapman University School of Law 

Michael R. Smith, University of Wyoming College of Law 

Victoria L. VanZandt, University of Dayton School of Law 

This hands-on session under the guidance of an experienced professor will provide 

participants with an opportunity to apply what they have learned about critiquing student 

work. Group members will critique a sample student paper and then share their experiences 

with the group. 

1:45 – 2:30 p.m. Grand Ballroom 

Lobby Level 

Plenary Session – Holding Effective Student Conferences 

Robin S. Wellford-Slocum, Chapman University School of Law 

Holding conferences with students is a hallmark of many legal writing programs. In this 

session, participants will be introduced to techniques for holding effective conferences, 

including how to schedule conferences, plan for conferences, and interact with students 

during conferences. Best practices and common pitfalls also will be addressed.


Thursday, June 23, continued 


Plenary Session – Legal Scholarship Lobby Level 

Michael R. Smith, University of Wyoming College of Law 

Scholarship about legal writing and by legal writing professors has exploded in recent 

years. Professor Smith will explore ways to set a scholarly agenda, secure funds and a 

mentor to support your scholarship, discuss the range of scholarship expectations for 

legal-writing professors, and strategies to find time to complete high-quality scholarship. 

3:30 – 3:45 p.m. Foyer of Grand Ballroom 

Refreshment Break Lobby Level 


Plenary Session—Course Design Lobby Level 

Amy E. Sloan, University of Baltimore School of Law 

This session will serve as a “capstone” about how to design an effective legal writing 

course. Topics will include creating a syllabus, assignment schedule, and course website; 

using teaching methods appropriate for the legal writing classroom; and assigning 

grades. 

12

13 


Planning Committee for AALS Workshop for New Law School 

Teachers, Workshop for Pretenured People of Color Law School 

Teachers, Workshop for Beginning Legal Writing Teachers 

Okianer Christian Dark, Howard University School of Law, Chair 

Darby Dickerson, Stetson University College of Law 

Luz E. Herrera, Thomas Jefferson School of Law 

Kellye Y. Testy, University of Washington School of Law 

2011 Committee on Professional Development 

Steven Bender, University of Oregon School of Law 

Devon Wayne Carbado, University of California at Los Angeles School of Law, Chair 

Vicki Jackson, Georgetown University Law Center 

Audrey McFarlane, University of Baltimore School of Law 

Donna M. Nagy, Indiana University Maurer School of Law 

Eduardo Moises Penalver, Cornell Law School 

Reva B. Siegel, Yale Law School 

Ronna G. Schneider, University of Cincinnati College of Law 

Charles D. Weisselberg, University of California Berkeley School of Law

Biographies of Speakers 

15 


BEAZLEY, MARY BETH, (F) Assoc. Prof. Ohio State. b.1957. BA, 1979, Bowling Green 

St. Univ.; JD, 1983, Notre Dame. Admitted: OH, 1984. Instr., Legal Writing Vermont, 

1983-1985; Co-Dir., Legal Writing, 1984-1985; Instr., Legal Res. & Writing Toledo, 1985- 

1986; Ass’t Att’y Gen., St. of OH Columbus, 1986-1988; Dir., Legal Writing Ohio St., 

1988-2000; Assoc. Prof., Since 2000. Subjects: Advanced Legal Writing (S); Appellate 

Advocacy; Legal Writing. Books & Awards: A Practical Guide to Appellate Advocacy, 3d 

ed., 2010. 2008, Burton Award; 2005, Thomas H. Blackwell Memorial Award.Member: 

Legal Writing Inst. (Bd. Mem., 1996-2004; Pres., 1998-00); Ass’n of Legal Writing Dirs. 

(Bd., 1996-97; Pres.. 2009-2010). Consultantships: Ed.-in-Ch., Legal Writing: The Jour. 

of the Legal Writing Inst., Volume 11, 2004-05; Chair, Communications Skills Com., 

ABA, 2005-09. 

CRICHTON, SHA-SHANA, Legal Writing Instr. & Interim Dir. of Legal Writing Prog. 

Howard. 

DARK, OKIANER CHRISTIAN, (F) Prof. & Assoc. Dean Howard. b.1954. BA Magna 

Cum Laude, 1976, Upsala Coll.; JD, 1979, Rutgers - Newark. Admitted: PA, 1979; NJ, 

1979. Trial Att’y, Antitrust Div. U.S. Dep’t of Just. DC, 1979-1984; Trial Att’y, Civil Div. 

DC, 1983-1984; Ass’t Prof., Richmond, 1984-1987; Assoc. Prof., 1987-1990; Prof., 

1990-1997; Ass’t U.S. Att’y, Off. of U.S. Att’y Dist. of OR Portland, 1995-2001; Prof., 

Howard, Since 2001; Assoc. Dean, Since 2005. Subjects: Antitrust; Gender & Law 

(S); Health Law (S); Products Liability; Torts. Books & Awards: Univ. of Richmond Dist. 

Educ’r Award, 1990,, 1993; Warren Rosmarin Prof. of Law Excellence Award in Tchg. 

& Serv., 2005. Consultantships: Chair, Montgomery Cty. Comm. on Health, 2005-07; 

Member, Adv’y Bd. of Montgomery Cty. Primary Care Prog., Montgomery County, 2009- 

11. 

DESANCTIS, CHRISTY HALLAM, (F) Prof. of Legal Writing & Dir. of Legal Writing 

Prog. Geo. Was. BA, 1992, Duke; JD, 1995, New York Univ; MA, 2006, Maryland; ABD, 

2009, Maryland. N.Y.U. Rev. L. & Soc. Change. Admitted: NY, 1996; DC, 1999. Prof. 

of Legal Writing and Director of Legal Writing Dep., The George Washington Univ. Law 

Sch., 2004 - Pres. Subjects: Intro to Advocacy; Law and Literature (S); Legal Research 

& Writing. Books & Awards: Legal Res. & Writing (with M. Murray), 2005; Legal Writing 

& Analysis, 2009; Legal Res. Methods, 2009; Advanced Legal Writing, 2009. Member: 

Legal Writing Inst.; Ass’n of Legal Writing Dirs. Consultantships: Lect., Institute for U.S. 

Law, 2010-10; Fac. Member, Workshop Series, Thomson Reuters, since 2010. 

DONAHOE, DIANA R. (F) Prof., Legal Res. & Writing Georgetown. b.1964. BA, 1986, 

Williams Coll.; JD, 1990, Georgetown; LLM, 1995, Georgetown. Geo. L.J. Admitted: CA, 

1991; DC, 1991. Clerk, U.S.D.C. DC, 1990-1991; Fellow, Georgetown, 1991-1993; Instr., 

1993-1998; Assoc. Prof., 1998-2001; Prof., Since 2001. Subjects: Advanced Legal 

Writing; Criminal Clinic.


Biographies, continued 

ENQUIST, ANNE M. Prof. of Lawyering Skills; Assoc. Dir. Legal Writing Prog. Seattle. 

BS, 1972; BA, 1972, New Mexico St.; Masters , 1977, Univ. of Washington. Lect., Puget 

Sound, 1979-1981; Prof. of Lawyering Skills, Seattle Univ. Sch. of Law, 1980 - Pres. 

Subjects: Gender & Justice (S); Legal Writing; Legal Writing I, Legal Writing II. Books & 

Awards: AALS Legal Writing, Analysis, and Res. Award, 2007; Just Memos, 2007; Just 

Briefs, 2008; Just Res. , 2009; Just Writing, 2009; The Legal Writing Hdbk., 2010. 2007, 

AALS Section Award.Member: Legal Writing Inst.; Ass’n of Legal Writing Directors. Consultantships: 

Mem., Legal Writing Inst., since 1994. 

SLOAN, AMY E. (F) Prof. & Co-Dir., Legal Skills Prog. Baltimore. b.1964. BA, 1985, 

Univ. of Texas; JD, 1992, Geo. Wash. Geo. Wash. L. Rev. Admitted: PA, 1993; DC, 

1994. Clerk, Hon. William M. Nickerson U.S.D.C. Balt., 1992-1993; Clerk, Hon. Edward 

S. Northrop U.S.D.C. Balt., 1993-1994; Ass’t Dir., Lawyering Skills Prog. Cath. Univ., 

1994-1996; Assoc. Prof. & Dir., Legal Res. & Writing Prog. Geo. Wash., 1996-2001; 

Prof., Baltimore, Since 2001. Subjects: Appellate Practice (S); Contracts I and II; Introduction 

to Lawyering Skills; Law & Rhetoric (S); Moot Court; Torts. Books & Awards: 

Basic Legal Research: Tools & Strategies, 4th ed., print and electronic versions, 2009; 

Basic Legal Res. Workbook (with Schwinn), Rev. 3d ed., 2010. Member: Ass’n of Legal 

Writing Dirs. (Ed’l Bd., 2001-03, Pres., 2002-03).; Order of the Coif; AALS (Chair, Sect. 

on Legal Writing, Reasoning & Res., 1999). 

SMITH, MICHAEL R. (M) Winston S. Howard Dist. Prof. & Dir., Legal Writing Prog. 

Wyoming. b.1961. BS, 1982, Fla. St.; JD, 1985, Univ. of Florida. Sr. Res. Ed., U. Fla. L. 

Rev. Admitted: CA, 1985; FL, 1986. Assoc., Gibson Dunn & Crutcher Newport Beach 

CA, 1985-1986; Assoc., Carlton Fields Ward Emmanuel Smith & Cutler P.A. Pensacola 

FL, 1986-1990; Lect., Legal Res. & Writing Prog. Univ. of Florida, 1990-1992; Lawyering 

Skills I Instr., San Diego, 1992-1996; Ass’t Prof., Temple, 1996-1999; Ass’t Prof., Mercer, 

1999-2001; Assoc. Prof., Mercer Univ. Sch. of Law, 2001-2006; Prof. & Dir. of Legal 

Writing, Univ. of Wyoming Coll. of Law, 2006 - 2008; Winston S. Howard Distinguished 

Professor of Law & Director of Legal Writing, Univ. of Wyoming Coll. of Law, 2008 - 

Pres. Subjects: Advanced Persuasive Writing (S); Appellate Advocacy; Legal Analysis; 

Legal Research & Writing; Property. Books & Awards: Advanced Legal Writing: Theories 

and Strategies in Persuasive Writing, 2002, 2d ed. 2008, 2002. 2006, Outstanding 

Academic Service Award, Black Law Students Association, Mercer University School 

of Law.Member: Legal Writing Inst. (Bd. of Dirs., 2006-10); Phi Kappa Phi; Order of the 

Coif; Ass’n of Legal Writing Dirs. (Bd. of Dirs., 2003-05). 

VANZANDT, VICTORIA L. (F) Assoc. Prof. of Lawyering Skills Dayton. b.1970. BA, 

1991, Ohio St.; JD, 1996, Dayton. Exec. Ed., U. Dayton L. Rev. Admitted: FL, 1996; 

OH, 2007. Clerk, U.S. Bkrptcy Ct. Jacksonville FL, 1996-1998; Commercial Litig. Assoc., 

Brant Moore MacDonald & Wells P.A. Jacksonville FL, 1998-2001. Subjects: Legal 

Research & Writing. Member: Legal Writing Inst. 

16

Biographies, continued 

17 


WELLFORD-SLOCUM, ROBIN S. (F) Prof. of Law Chapman. BA, 1975, Northwestern; 

JD, 1982, Wash., St. Louis. Wash. U.L.Q. Admitted: IL, 1982; MO, 1983. Clerk, Hon. 

James H. Meredith St. Louis, 1982-1983; Att’y, Greensfelder Hemker & Gale St. Louis, 

1983-1986; Att’y, Suelthaus & Kaplan P.C. St. Louis, 1987-1989; Instr., Wash. St. Louis, 

1989-1993; Vis. Ass’t Prof., 1992-1994; Dir., Legal Res. & Writing, 1992-2000; Assoc. 

Prof., Chapman, 2000-2004; Prof., Chapman Univesity Sch. of Law, Since 2004. Subjects: 

Alternative Dispute Resolution; Client Counseling; Legal Research & Writing; Professional 

Responsibility. Books & Awards: 1995 Lexis Electronic Authors Press Award, 

1995; Legal Analysis & Writing, 1997; Legal Reasoning, Writing & Persuasive Argument, 

2002, 2d ed., 2006. Member: Order of the Coif. Consultantships: Fac. Adv’r, LexisNexis 

Publishing Company, 2007-09.

Workshop Materials 

Workshop speakers were invited to submit discussion outlines 

for those in attendance. These outlines and other materials are 

presented in sequence of the program

I. Introductions 

Working with the Director 

By Christy DeSanctis, Director 

George Washington University Law School 

A. What inspired you to teach? 

B. What inspired you to teach legal writing? 

C. The Profession & Your Professional Goals 

II. Types of LRW Programs 

A. Director v. Directorless Programs 

a. The Logic 

b. The Future of the Profession 

B. Basic Considerations 

a. Levels of Autonomy 

b. Syllabus & Curriculum 

c. Textbooks, etc. 

d. Memo and Brief Problems 

e. Grading Protocols 

III. Working with the Director (and the Institution) 

A. Expectations 

B. Constraints 

C. Pedagogy 

D. Administration 

E. Scholarship 

21 

Workshop for Beginning Legal Writing Teachers


IV. Working with Peers 

A. Internal listserv (TWEN?) 

B. External listservs (www.lwionline.org) 

C. Database for fact patterns and materials 

D. Specific Journals, etc. 

a. The Second Draft 

b. Journal of the Legal Writing Institute 

c. Journal of Legal Ed. 

d. The Journal formerly known as J.ALWD (Journal of Legal Communications & Rhetoric) 

e. Conferences, regional and national 

i. What to think about 

ii. What to expect 

iii. Why to do it 

f. Other opportunities 

V. The Most Useful Things I Can Tell You 

A. Bringing Your Personality into the Classroom 

B. Bringing Your Experience into the Classroom 

C. Your Relationship With Students 

D. Your Relationship to the Profession 

22

I. 

II. 

III. 

IV. 

V. 

I. 

II. 

III. 

Directorless Programs 

By Diana Donahoe 

Georgetown University Law Center 

Overview and History of Directorless Programs 

Goals of LRW Professors in Directorless Programs 

Roles of LRW Professors in Directorless program 

With other LRW Professors 

With other Professors 

With Deans and Administrators 

With Librarians 

Resources for new LRW Professors 

Challenges 

Overview and History of Directorless Programs 

History in General and at Georgetown 

Goals of LRW Professors in Directorless Programs 

Excellent Teaching 

– experiential learning pedagogy 

– engaging students in classroom 

Scholarship 

- what kind of scholarship (LRW or other)? 

- how much? 

Full integration within academy 

Roles of LRW Professors in Directorless Programs 

With other LRW Professors 

syllabus 

course design 

books 

lesson plans 

scholarship 

23 



IV. 

V. 

With other Professors 

workshops 

committees 

scholarship 

faculty events 

With Deans and Adminstrators 

teaching 

scholarship 

service 

With Librarians 

collaboration 

teaching research 

new resources 

Resources for New LRW Professors 

Legal Writing Conferences and List Servs 

ALWD 

LWI 

Other Conferences 

Challenges 

AALS 

AALL 

CALI 

Balancing teaching with scholarship 

Becoming prominent teachers 

innovative 

experiential learning pedagogy 

Marketing 

Balancing academic freedom with consistency in program 

24

I. Ancient History 

Student “Teachers” 

Two years and out 

Ancient Curricula 

History & Mission of Legal Writing Programs 

By Mary Beth Beazley 

The Ohio State University, Michael E. Moritz College of Law 

II. The Sea Change 

Paradigm Shift in Composition Theory 

Women enter law school and the academy 

The MacCrate Report 

LWI is founded 

ALWD is founded 

III. Good News and Bad News 

Current issues in status 

Current issues in scholarship 

IV. The Modern Mission 

Legal writing’s place in the academy 

Joining the vibrant community of Legal Writing teachers and scholars 

25 



Legal Research and Writing: A Very Selective Bibliography 

Status Issues 

ABA Comm’n on Women in the Prof., Elusive Equality: The Experiences of Women in 

Legal Educ. 33 (1996). 

Maureen J. Arrigo, Hierarchy Maintained: Status and Gender Issues in Legal Writing 

Programs, 70 Temp. L. Rev. 117 (1997). 

Maureen Arrigo-Ward, How to Please Most of the People Most of the Time: Directing 

(or Teaching in). a First-Year Legal Writing Program, 29 Val. U.L. Rev. 557, 569-70 

(1995). 

Peter Brandon Bayer, A Plea for Rationality and Decency: The Disparate Treatment of 

Legal Writing Faculties as a Violation of Both Equal Protection and Professional Ethics, 

39 Duq. L. Rev. 329, 357 (2001). 

Mary Beth Beazley, “Riddikulus!”: Tenure-Track Legal-Writing Faculty and the Boggart in 

the Wardrobe, 7 Scribes J. Legal Writing 79 (1998-2000). 

Richard H. Chused, The Hiring and Retention of Minorities and Women on American 

Law School Faculties, 137 U. Pa. L. Rev. 537, 553 (1988). 

Jenny B. Davis, Writing Wrongs: Teachers of Legal Prose Struggle for Higher Status, 

Equal Treatment, 87 A.B.A. J. 24 (2001). 

Jo Anne Durako, Stop the Presses: Gender-Based Differences Discovered in the Legal 

Writing Profession, 7 Scribes J. Legal Writing 87, 90 (2000). 

Jo Anne Durako, Second-Class Citizens in the Pink Ghetto: Gender Bias in Legal Writing, 

50 J. Legal Educ. 562 (2000). 

Jo Anne Durako, Dismantling Hierarchies: Occupational Segregation of Legal Writing 

Faculty in Law Schools: Separate and Unequal, 73 U.M.K.C. L. Rev. 253, 257 

(2004). 

Pamela Edwards, Teaching Legal Writing as Women’s Work: Life on the Fringes of the 

Academy, 4 Cardozo Women’s L J. 75 (1997). 

Marjorie E. Komhauser, Rooms of Their Own: An Empirical Study of Occupational Segregation 

by Gender Among Law School Professors, 73 UMKC L. Rev. 293, 295 2004 

Ilhyung Lee, The Rookie Season, 39 Santa Clara L. Rev. 473 (1999). 

26

27 


Jan M. Levine, Leveling the Hill of Sisyphus: Becoming a Professor of Legal Writing, 26 

Fla. St. U. L. Rev. 1067 (1999). 

Jan M. Levine, Voices in the Wilderness: Tenured and Tenure-Track Directors and 

Teachers in Legal Research and Writing Programs, 45 J. Legal Educ. 530 (1995). 

Jan M. Levine & Kathryn M. Stanchi, Women, Writing & Wages: Breaking the Last Taboo, 

7 Wm. & Mary J. Women & L. 551 (2001). 

Jan M. Levine, “You Can’t Please Everyone, So You’d Better Please Yourself”: Directing 

(Or Teaching In). a First-Year Legal Writing Program, 29 Val. U.L. Rev. 611 (1995). 

Nancy Levit, Keeping Feminism in Its Place: Sex Segregation and the Domestication of 

Female Academics, 49 U. Kan. L. Rev. 775 (2001). 

Susan P. Liemer, The Hierarchy of Law School Faculty Meetings: Who Votes?, 73 

U.M.K.C. L. Rev. 351 (2004). 

Susan P. Liemer & Hollee S. Temple, Did Your Legal Writing Professor Go To Harvard?: 

The Credentials of Legal Writing Faculty at Hiring Time, 46 U. Louisville L. Rev. 383 

(2008). 

Ann C. McGinley, Discrimination in Our Midst: Law Schools’ Potential Liability for Employment 

Practices, 14 UCLA Women’s L. J. 1 (2005). 

Deborah Jones Merritt, The Status of Women on Law School Faculties: Recent Trends 

in Hiring, 1995 U. Ill. L. Rev. 93 (1995). 

Deborah Jones Merritt & Barbara F. Reskin, Sex, Race, and Credentials: The Truth 

About Affirmative Action in Law Faculty Hiring, 97 Colum. L. Rev. 199 (1997). 

Deborah Jones Merritt, Research and Teaching on Law Faculties: An Empirical Exploration, 

73 Chi.-Kent L. Rev. 765, 811 (1998). 

Deborah J. Merritt & Barbara F. Reskin, The Double Minority: Empirical Evidence of a 

Double Standard in Law School Hiring of Minority Women, 65 S. Cal. L. Rev. 2299 

(1992). 

Richard K. Neumann, Jr., Women in Legal Education: A Statistical Update, 73 U.M.K.C. 

L. Rev. 419 (2004). 

Richard K. Neumann, Jr., Women in Legal Education: What the Statistics Show, 50 J. 

Legal Educ. 313 (2000). 

Barbara F. Reskin & Heidi I. Hartmann Women’s Work, Men’s Work: Sex Segregation 

on the Job (1986).


J. Christopher Rideout & Jill J. Ramsfield, Legal Writing: A Revised View, 69 Wash. L. 

Rev. 35 (1994). 

Hope Viner Samborn, Legal Writing Instruction: The Pink Ghetto of Academe, Persp. 

For & About Women L. 8 (Spring/Summer 2001). 

Kathryn M. Stanchi & Jan M. Levine, Gender and Legal Writing: Law Schools’ Dirty Little 

Secrets, 16 Berkeley Women’s L.J. 1 (2001). 

Kathryn M. Stanchi, Who Next, The Janitors? A Socio-Feminist Critique of the Status 

Hierarchy of Law Professors, 73 UMKC L. Rev. 467 (2004). 

Kathryn M. Stanchi, Exploring the Law of Law Teaching: A Feminist Process, 34 J. Marshall 

L. Rev. 193 (2000). 

Kent D. Syverud, The Caste System and Best Practices in Legal Education, 1 J. ALWD 

12, 14-16 (2001). 

D. Kelly Weisberg, Women in Law School Teaching: Problems and Progress, 30 J. Legal 

Educ. 226 (1979). 

Richard A. White, The Gender and Minority Composition of New Law Teachers and 

AALS Faculty Appointments Register Candidates, 44 J. Legal Educ. 424 (1994). 

Elyce H. Zenoff & Kathryn V. Lorio, What We Know, What We Think We Know, and 

What We Don’t Know about Women Law Professors, 25 Ariz. L. Rev. 869 (1983). 

History and Development of Legal Research and Writing 

Mary Beth Beazley & Linda H. Edwards, The Process and the Product: A Bibliography 

of Scholarship about Legal Scholarship, 49 Mercer L. Rev. 741 (1998). 

Linda L. Berger, Linda H. Edwards, & Terrill Pollman The Past, Presence, and Future 

of Legal Writing Scholarship: Rhetoric, Voice, and Community, 16 Legal Writing: J. 

Legal Writing Inst. 521 (2010). 

Kenneth D. Chestek, MacCrate (In).action: The Case for Enhancing the Upper-Level 

Writing Requirement in Law Schools,78 U. Colo. L. Rev. 115 (2007). 

Jo Anne Durako, A Snapshot of Legal Writing Programs at the Millennium, 6 Legal Writing: 

J. Legal Writing Inst. 95 (2000). 

Lisa Eichhorn, Writing in the Legal Academy: A Dangerous Supplement?, 40 Ariz. L. 

Rev. 105, 131-33 (1998). 

28

29 


Toni M. Fine, Legal Writers Writing: Scholarship and the Demarginalization of Legal 

Writing Instructors, 5 J. Legal Writing Inst. 225, 225 (1999). 

Kristin B. Gerdy, Introduction to the Legal Writing Institute: Celebrating 25 Years of 

Teaching & Scholarship, 61 Mercer L. Rev. 759 (2010). 

Kristin B. Gerdy, Continuing Development: A Snapshot of Legal Research and Writing 

Programs Through the Lens of the 2002 LWI and ALWD Survey, 9 Legal Writing: J. 

Legal Writing Inst. 227 (2002). 

George D. Gopen, Legal Writing: A Bibliography, 1 Legal Writing: J. Legal Writing Inst. 

93 (1991). 

George D. Gopen, The State of Legal Writing: Res Ipsa Loquitur, 86 Mich. L. Rev. 333 

(1987). 

Emily Grant, Toward a Deeper Understanding of Legal Research and Writing as a Developing 

Profession, 27 Vt. L. Rev. 371 (2003). 

Mary S. Lawrence, The Legal Writing Institute, The Beginning: Extraordinary Vision, 

Extraordinary Accomplishment, 11 Legal Writing: J. Legal Writing Inst. 213 (2005). 

Mary S. Lawrence, An Interview with Marjorie Rombauer, 9 Legal Writing: J. Legal Writing 

Inst. 19 (2003). 

Legal Writing Institute, The Legal Writing Institute: Celebrating 25 Years of Teaching & 

Scholarship A Symposium of the Mercer Law Review November 6, 2009 Transcript – 

Morning Session, 61 Mercer L. Rev. 763 (2010). 

Jan M. Levine, Legal Research and Writing: What Schools are Doing, and Who is Doing 

the Teaching, 7 Scribes J. Legal Writing 51 (2000). 

Susan P. Liemer & Jan M. Levine, Legal Research and Writing: What Schools are Doing, 

and Who is Doing the Teaching (Three Years Later)., 16. 9 Scribes J. Legal Writing 

113 (2003-2004). 

Teresa Godwin Phelps, The New Legal Rhetoric, 40 Sw. L.J. 1089 (1986). 

Terrill Pollman, Building a Tower of Babel or Building a Discipline? Talking About Legal 

Writing, 85 Marq. L. Rev. 887 (2002). 

Terrill Pollman & Linda H. Edwards, Scholarship by Legal Writing Professors: New 

Voices in the Legal Academy, 11 J. Legal Writing Inst. 3 (2005). 

Jill J. Ramsfield, Legal Writing in the Twenty-First Century: The First Images, 1 Legal 

Writing: J. Legal Writing Inst. 123 (1991).


Jill J. Ramsfield, Legal Writing in the Twenty-First Century: A Sharper Image, 2 Legal 

Writing: J. Legal Writing Inst. 1 (1996). 

Marjorie Dick Rombauer, Regular Faculty Staffing for an Expanded First-Year Research 

and Writing Course: A Post Mortem, 44 Alb. L. Rev. 392 (1980). 

Marjorie Dick Rombauer, First-Year Legal Research and Writing: Then and Now, 25 J. 

Leg. Educ. 538 (1972-1973). 

Suzanne E. Rowe, From Polaroid Snapshot to 3-D Movie: Updating the Annual Survey 

of Legal Writing Programs, 16 Legal Writing: J. Legal Writing Inst. 565 (2010). 

Suzanne E. Rowe, One Small Step: Beginning the Process of Institutional Change to 

Integrate the Law School Curriculum, 1 J. Ass’n Legal Writing Directors 218 (2002). 

Lorne Sossin, Discourse Politics: Legal Research and Writing’s Search for a Pedagogy 

of Its Own, 29 New Eng. L. Rev. 883 (1995). 

Melissa H. Weresh, Form and Substance: Standards for Promotion and Retention of Legal 

Writing Faculty on Clinical Tenure Track, 37 Golden Gate U. L. Rev. 281 (2006- 

2007). 

30

Designing Assignments and Assessments 

By Victoria L. VanZandt 

University of Dayton School of Law 

31 


Designing legal writing assignments is an important and challenging task. This session 

will focus on the hallmarks of an effective assignment, methods for constructing sound 

assignments, techniques to design effective assessment tools, and how to avoid common 

pitfalls in designing both assignments and assessments. 

I. 

II. 

III. 

Interplay between Assessment and Creating Assignments 

Basics of Course-Level Assessment Planning 

A. Course-Level Assessment is a set of practices by which an educator 

identifies desired student learning outcomes and measures her 

effectiveness in attaining these outcomes. 

Step One: Identify learning outcomes and performance criteria for the 

course. 

Step Two: Create assessment tools (assignments) to determine whether 

the learning outcomes and performance criteria are being met. 

Step Three: Review the results from the assessment tool(s). 

Step Four: Close the loop” of assessment, by using the results to alter the 

course or assignment, if necessary. 

B. 

“Course Mapping” 

• Sequencing of assignments- assignments should build on previous 

assignments: reinforcing or practicing past skills and introducing new 

skills 

• Sequencing of steps within an assignment 

Creating Assignments (Assessment Tools) 

A. Initial Considerations 

1. Identify Your Learning Outcomes for the Assignment 

• communication skills: written or oral; predictive or persuasive; 

• analytical skills; 

• research skills; 

• values and/or ethics; 

• professionalism. 

2. Decide on the Type of Assignment 

• 

Memo, Trial Brief, Appellate Brief, Letter, Email


B. 

C. 

3. Other Considerations: 

• Open or Closed Universe 

• Common law or Statutory Law 

• Elements or Factors 

• Sources to be used – statutes, regulations, legislative history, etc. 

• State or Federal 

• Level of Court 

• Degree of Difficulty 

• Settled or Unsettled Issue 

• Analogical and/or Rule-based Reasoning 

• Using Different Fact Patterns or One Fact Pattern for All Assignments 

Research Your Ideas 

1. Choose the Subject Matter 

• Consult Various Resources 

o LWI Idea Bank 

o Colleagues – LARW and First Year Professors 

o splitcircuits.blogspot.com 

o Media: Newspapers, Internet, TV 

o LEXIS/ Westlaw searches 

o ALR 

o Practicing lawyers 

o Annotated Codes 

o United States Law Week 

o Advance Sheets 

• Avoid or Embrace Controversial Issues 

• Keep it Interesting for You and the Students 

2. Choose the Jurisdiction 

• State, Federal, or Hypothetical 

• Availability of Binding Precedent 

Designing the Assignment 

1. Presenting the Facts 

• The “File” or the “Record” 

• Realistic Documents or Setting 

2. Setting Assignment Requirements 

• Open or Closed Research 

• Number of Drafts 

• Number/Types of Conferences 

• Page Limits 

• Percentage of Final Grade 

• Collaboration Policy 

• Scheduling – Due Dates and Conferences 

• 

Evaluation Criteria (Rubric) 

32

IV. 

3. 

4. 

Providing Assignment Details to Students 

• Assignment Sheet for Students 

• Rubric 

• Examples 

Create an Assignment Notebook 

• The Assignment Sheet 

• The Facts 

• The Law- Cases and Statutes, etc. 

• An Outline 

• Case Summaries 

• Rubric 

• Top Papers from Previous Semester, if available 

• Citation List 

• Local Rules, if applicable 

Avoid Common Pitfalls 

• Failing to Update Recycled Assignments 

• The Imperfect or Incomplete Record 

• Inappropriate Difficulty Level/ Too Long 

• Pending Case is Decided 

• Availability of Real Briefs 

• Failing to Share the Rubric 

• Forgetting About the Larger Audience 

• Boring Subject Matter 

• Ill-defined Issues 

33 


Bibliography 

• Commun. Skills Comm., ABA Sec. Leg. Educ. & Admis. to B., Sourcebook on Legal 

Writing Programs (Eric B. Easton ed., 2d ed., ABA 2006). 

• Lorraine Bannai, Anne Enquist, Judith Maier & Susan McClellan, Sailing Through 

Designing Memo Assignments, 5 Legal Writing 193 (1999). 

• Kenneth D. Chestek, Reality Programming Meets LRW: The Moot Case Approach to 

Teaching in the First Year, 38 Gonz. L. Rev. 57 (2003). 

• Phillip M. Frost, Using Ethical Problems in First-Year Skills Courses, 14 Persp.: 

Teaching Legal Res. & Writing 7 (2005). 

• Elizabeth L. Inglehart & Martha Kanter, “The Real World”: Creating a Compelling 

Appellate Brief Assignment Based on a Real-World Case, 17 Persp.: Teaching Legal 

Res. & Writing 128 (2009). 

• Gail Anne Kintzer, Maureen Straub Kordesh & C. Ann Sheehan, Rule Based Legal 

Writing Problems: A Pedagogical Approach, 3 Legal Writing 143 (1997). 

Jan M. Levine, 

• Designing Assignments for Teaching Legal Analysis, Research and 

Writing, 3 Persp.: Teaching Legal Res. & Writing 58 (1995).


• James B. Levy, Dead Bodies and Dueling: Be Creative in Developing Ideas for Open 

Universe Memoranda, 7 Persp.: Teaching Legal Res. & Writing 13 (1998). 

• Susan P. Liemer, Many Birds, One Stone: Teaching the Law you Love, in Legal Writing 

Class, 53 J. Legal Educ. 284 (2003). 

• Kathleen A. Portuan Miller, Creating an Appellate Brief Assignment: A Recipe for 

Success, 16 Persp.: Teaching Legal Res. & Writing 165 (2008). 

• Diana V. Pratt, Designing a Contract Drafting Assignment, 14 Persp.: Teaching Legal 

Res. & Writing 95 (2006). 

• Sarah E. Ricks, Teaching 1Ls to Think Like Lawyers by Assigning Memo Problems 

with No Clear Conclusions, 14 Persp.: Teaching Legal Res. & Writing 10 (2005). 

• Louis N. Schulze, Jr., Homer Simpson Meets the Rule Against Perpetuities: The 

Controversial Use of Pop Culture in Legal Writing Pedagogy, 15 Persp.: Teaching 

Legal Res. & Writing 1 (2006). 

• Helene S. Shapo & Mary S. Lawrence, Designing the First Writing Assignment, 5 

Persp.: Teaching Legal Res. & Writing 94 (1997). 

• Grace Tonner & Diana Pratt, Selecting and Designing Effective Legal Writing Problems, 

3 Legal Writing 163 (1997). 

Victoria L. VanZandt, 

• Creating Assessment Plans for Introductory Legal Research 

and Writing Courses, 16 Legal Writing 313 (2010). 

34

Critiquing Law Students’ Writing Outline 

By Anne M. Enquist 

Seattle University School of Law 

How important is critiquing law students’ writing? 

How does the professor set the stage for successful critiques? 

What roles does the professor play when critiquing students’ writing? 

What are the components of an effective critique? 

What is an effective format for an end comment? 

How does one determine what to prioritize for a student? 

What makes an effective margin comment? 

What are the main challenges inherent in critiquing? 

What are the common novice mistakes? 

How does one survive the critiquing process? 

Where do I go to find out more information about critiquing? 

35 



Bibliography on Critiquing Law Students’ Writing 

Legal Writing Institute monograph—“The Art of Critiquing Written Work”— can be found 

on the LWI website at http://www.lwionline.org/monograph.html (2009). 

Teacher Critique, Written and Oral 

Daniel L. Barnett, “Form Ever Follows Function”: Using Technology to Improve Feedback 

on Student Writing in Law School, 42 Val. U. L. Rev. 755 (2008). 

Daniel L. Barnett, Triage in the Trenches of the Legal Writing Course: The Theory and 

Methodology of Analytical Critique, 38 U. Tol. L. Rev. 651 (2007). 

Linda L. Berger, A Reflective Rhetorical Model: The Legal Writing Teacher as Reader and 

Writer, 6 Legal Writing: J. Legal Writing Inst. 57 (2000). 

Kirsten K. Davis, Building Credibility in the Margins: An Ethos-Based Perspective for 

Commenting on Student Papers, 12 Legal Writing: J. Legal Writing Inst. 73 (2006). 

Anne Enquist, Critiquing and Evaluating Law Students’ Writing: Advice from Thirty-Five 

Experts, 22 Seattle U. L. Rev. 1119 (1999). 

Anne Enquist, Critiquing Law Students’ Writing: What the Students Say Is Effective, 2 

Legal Writing: J. Legal Writing Inst. 145 (1996). 

Jane Kent Gionfriddo, The “Reasonable Zone of Right Answers”: Analytical Feedback on 

Student Writing, 40 Gonz. L. Rev. 427 (2004/05). 

Jane Kent Gionfriddo, Daniel L. Barnett & E. Joan Blum, A Methodology for Mentoring 

Writing in Law Practice: Using Textual Clues to Provide Effective and Efficient Feedback, 

27 Quinnipiac L. Rev. 171 (2009). 

Jessie C. Grearson, From Editor to Mentor: Considering the Effect of Your Commenting 

Style, 8 Legal Writing: J. Legal Writing Inst. 147 (2002). 

Mary Kate Kearney & Mary Beth Beazley, Teaching Students How to “Think Like Lawyers”: 

Integrating Socratic Method with the Writing Process, 64 Temp. L. Rev. 885 (1991). 

Richard K. Neumann, Jr., A Preliminary Inquiry into the Art of Critique, 40 Hastings L.J. 

725 (1989). 

Robin S. Wellford-Slocum, The Law School Student-Faculty Conference: Towards a 

Transformative Learning Experience, 45 S. Tex. L. Rev. 255 (2004). 

36

Peer Review Critique 

37 


Linda L. Berger, Applying New Rhetoric to Legal Discourse: The Ebb and Flow of Reader 

and Writer, Text and Context, 49 J. Legal Educ. 155 (1999). 

Kirsten K. Davis, Designing and Using Peer Review in a First-Year Legal Research and 

Writing Course, 9 Legal Writing: J. Legal Writing Inst. 1 (2003). 

Author Self-Critique 

Mary Beth Beazley, The Self-Graded Draft: Teaching Students to Revise Using Guided 

Self-Critique, 3 Legal Writing: J. Legal Writing Inst. 175 (1997). 

Articles about Critiquing in Perspectives 

Heyde, Christina R. and Susan E. Provenzano, E-Grading: The Pros and Cons of Paperless 

Legal Writing Papers: 12: 139–146 

Higdon, Michael J.,From Simon Cowell to Tim Gunn: What Reality Television Can Tell Us 

About How to Critique Our Students’ Work Effectively: 15: 169–173 

Shapo, Helene S. and Christina L. Kunz, Brutal Choices: Should the First-Year Legal Writing 

Course Be Graded in the Same Way As Other First-Year Courses? : 2: 6–8 

Sneddon, Karen J., Armed with More Than a Red Pen: A Novice Grader’s Journey to 

Success with Rubrics : 14: 28–33 

Zimmerman, Emily, The Proverbial Tree Falling in the Legal Writing Forest: Ensuring That 

Students Receive and Read Our Feedback on Their Final Assignments : 11: 7–11 

Articles about Critiquing in the Second Draft 

Can be found at www.lwionline.org (under “Publications”) 

Volume 22, No. 1 Providing Effective Feedback Fall 2007 

Leslie Rose, E-Commenting: Pros and Cons 

Craig T. Smith, Readying Ourselves to Provide Effective, Timely Feedback 

Kirsten K. Davis, Commenting and Conversation

Reasonable Fear 

Excerpt from the Critique of Student’s Draft, First Memo 

The second element that the State must prove is whether Mr. Lani 

reasonably feared that Mr. Pemberque intended to injure him. RCW 

9A.46.110(1)(b) reads as follows: 

The person being harassed or followed is placed in fear that the 

stalker intends to injure the person, another person, or property of 

the person or of another person. The feeling of fear must be one 

that a reasonable person in the same situation would experience 

under all the circumstances. 

The courts have said that tThe test is an objective test. State v. Ainslie, 

103 Wn.App. 1, 7, 11 P.3d 318 (2000). 

Of the published Washington cases that discuss the element of 

reasonable fear in the crime of felony stalking, the Ainslee case is directly on 

point regarding the standard of a reasonable person in the same situation. In 

Ainslee, the court held that there was sufficient evidence to support a finding that 

the victim’s fear was reasonable when Ainslee repeatedly parked within sight of 

the victim, a 14-year-old girl; while the girl was walking alone, Ainslee would get 

out of his car and stand near his car; and even after being chased down and 

warned by the victim’s father, Ainslee continued his pattern of parking near the 

young girl’s home. Id. at 3, 7. A reasonable person in the same situation of the 

14-year-old victim would have reasonably feared the defendant because he was 

not known to her and his motives were not clear to her. 

The State will give four arguments why Mr. Lani reasonably feared that 

Mr. Pemberque would injure him. First, the State will rely on the fact that Mr. 

Pemberque ignored the warning of a police officer and continued to park outside 

39 


Comment [MNB1]: Good information here – it’s 

good to quote the statute. But do you really need all 

these words? It would be easier to read if you could 

shorten the quotation, as block quotations are hard to 

read. 

Comment [MNB2]: Conciseness. See LWH p. 

679-697. 

Comment [MNB3]: Should be a space between 

Wn. and App., per the Washington Style Sheet. 

Comment [MNB4]: The introduction to this 

sentence gives some good information to show that 

Ainslee is a particularly important case – that’s 

helpful for the reader to know. But that point could 

be made more concisely, and it would be helpful to 

get the key idea from the case in the topic sentence, 

to make it more principle based. As currently 

written, the second half of the sentence just mentions 

the reasonable person standard, which is clear from 

the sentence at the end of the previous paragraph 

about it being an objective person test – that means 

that the court uses a reasonable person standard. 

Comment [MNB5]: Good information about the 

court’s reasoning. But did the court make clear why 

she could reasonably have suspected that he would 

injure her? That part of the test seems to be missing 

here. 

Comment [MNB6]: Before you get into the 

arguments, finish explaining the law. Aren’t there 

other analogous cases that would help the reader 

understand when the reasonable person standard is 

satisfied? And are there any cases in which the court 

found that the victim’s subjective fear was 

unreasonable under the circumstances? The reader 

needs to be able to understand the law in order to be 

prepared to evaluate the arguments for each side. If 

there aren’t any other cases that would help the 

reader understand the law, then make that clear.


the Lani residence. On September 1, 2009, nine days prior to Mr. Pemberque’s 

arrest, Mrs. Lani had called the police and had explained to the police that both 

she and her son were frightened by Mr. Pemberque. When the police confronted 

Mr. Pemberque that same day, the officer told him that Mrs. Lani had stated that 

she and her son were frightened. In the Ainslee case, Ainslee had also been 

warned once by the police. Id. at 5. The State will argue that like the victim in 

Ainslee, any person no matter the situation would be afraid when a person 

ignores an express warning of a police officer. 

Second, the State will argue that the warning by the police in our case is 

stronger evidence to create reasonable fear than that found in Ainslee. In 

Ainslee, the officer did not tell Ainslee that the victim was frightened. In our case, 

the police officer told Mr. Pemberque that the victim was frightened. The State 

will argue that a reasonable person in the same situation as Mr. Lani would be 

reasonably afraid that if someone does not abide by the law in one situation such 

as Mr. Pemberque’s disobeying a police officer, then that person might not abide 

by other laws. 

Third, the State will also rely on the pattern in which Mr. Pemberque 

parked his car in front of the Lani residence for over two weeks. The State will 

argue that Mr. Pemberque parked his car in a consistent time frame. In the 

Ainslee case, Ainslee usually parked his car between 3 PM and 6 PM three to 

four times per week. Id. at 3. The State will argue that Mr. Lani’s fear was 

reasonable because Mr. Pemberque parked his car outside the Lani residence 

only when Mr. Lani was home, thus suggesting that Mr. Pemberque knew his 

40 

Comment [MNB7]: In general, within an 

argument paragraph, put the relevant law before the 

detail about the facts of your own case. If the law 

comes before the facts, it is much easier for the 

reader to see the connection between the law and the 

facts (in other words, it’s easier for the reader to 

understand the significance of our facts in light of 

information about the case, but if the facts from our 

case comes first, the reader has to re-read the facts 

after reading about the law. 

Comment [MNB8]: That’s very broad language 

– it doesn’t seem necessary to say that “any person 

no matter the situation” would be afraid when 

someone disregards an express warning of a police 

officer � you just have to show that the fact that a 

person disregards a police warning would contribute 

to a finding of reasonable fear. Articulate your 

argument precisely so you don’t make it easier for 

the other side to shoot down the argument. 

Comment [MNB9]: Why, though? Get the key 

idea in the topic sentence. 

Comment [MNB10]: Does this really need to be 

a separate paragraph, or can this point be made in the 

paragraph above? They seem very closely related. 

Comment [MNB11]: How does that fact help, 

though? Try to get the key concept or idea into the 

topic sentence – connect it back to reasonable fear 

here, so the reader can see where the argument is 

gong. 

Comment [MNB12]: Again, keep working on 

conciseness. Once you have revised the draft for 

content and organization, then review the materials 

in the LWH on conciseness and go through your 

draft sentence by sentence, looking for ways to get 

rid of extra words. 

Comment [MNB13]: Did that matter to the 

court?

schedule. The State will argue that a reasonable person in the same situation as 

Mr. Lani would be reasonably afraid of Mr. Pemberque because a reasonable 

person would be afraid if someone who knew his schedule. 

Fourth, the State will argue that Mr. Pemberque’s car was visible from the 

Lani residence, which was also the case in Ainslee. There, Ainslee parked on 

the street approximately 60 to 100 feet from the victim’s house. Id. at 3. 

Although the exact number of feet between Mr. Pemberque’s parked car and the 

Lani residence has not yet been determined, the State will argue that Mr. 

Pemberque’s car was visible because Mrs. Lani reported to the police that she 

could see it from her house. In the Ainslee case, Ainslee’s car was visible from 

the front window of the victim’s house. Id. at 3. Here, the State will argue that a 

reasonable person in the same situation as the Lanis would be afraid because it 

is not common for someone to routinely park outside another’s house and sit in 

the car. 

Next, the State will argue that Mr. Lani’s fear was reasonable under all the 

circumstances. First, the State will argue that the plain language of the statute is 

clear that the jury could consider all the circumstances. The State will argue that 

here, like Ainslee, the jury should look at all the circumstances regarding Mr. 

Lani. In Ainslee, the victim was a fourteen year-old girl. The State will argue that 

here, like the victim in Ainslee, Mr. Lani’s circumstances are unique. The State 

will point out that not only is Mr. Lani a registered sex offender, but he is also 

developmentally delayed. The State will argue that a person in the same 

situation as Mr. Lani would feel a stigma based on his sex offense conviction and 

41 


Comment [MNB14]: Interesting point. 

Comment [MNB15]: But how does that show 

reasonable fear? Again, organize the arguments a bit 

more conceptually , rather than organizing them 

around facts. The comparison to the analogous case 

should support the argument, but introduce the 

argument in terms of the relevant legal concept. 

Comment [MNB16]: In this draft, it seems like 

your key points show up at the end of the paragraphs 

� try to rework the paragraphs so that you move the 

key points into the first sentence of each paragraph. 

Comment [MNB17]: You said above that the 

state had four arguments, and this is a fifth argument 

paragraph. Make sure your roadmap is consistent 

with the actual structure


thus, would feel targeted. Second, the State will argue that because Mr. Lani is 

developmentally delayed he might have a greater fear of someone monitoring his 

comings and goings. 

In response, we can argue that, although Mr. Lani may have been afraid, 

his fear was not reasonable. First, in Ainslee, the stalking victim was a 14-year- 

old girl. Id. at 3. In our case, Lewis Lani is a 22-year-old male and a registered 

sex offender. A reasonable person in the same situation as Mr. Lani would not 

be afraid because he is a grown man. 

Second, we can argue that Mr. Lani’s fear was not reasonable because 

Mr. Pemberque was not a stranger as he has lived in the neighborhood for six 

years. Thus, we can distinguish our case from Ainslee. In the Ainslee case, 

Ainslee was a stranger and was “unknown” to the victim. Id. at 7. In our case, 

although the Certificate of Determination does not state that the Lanis knew Mr. 

Pemberque, they presumably knew Mr. Pemberque because he had been a 

neighbor for 6 years. We can argue that Mr. Lani’s fear is not reasonable 

because a reasonable person would not be afraid of a neighbor unless that 

neighbor had done something to him in the past. Prior to the current allegation of 

stalking, there is no indication that Mr. Pemberque has ever done anything 

malicious to the Lanis. 

Third, we can argue that Mr. Lani’s fear was unreasonable because Mr. 

Pemberque never approached or followed Mr. Lani. In the Ainslee case, Ainslee 

did not simply remain in his car in one spot. On at least one occasion, while the 

victim was walking alone, Ainslee pulled up to the opposite side of the road of 

42 

Comment [MNB18]: This paragraph isn’t really 

a totality of the circumstances argument – it is really 

about one more specific point. 

Comment [MNB19]: Good main argumentative 

assertion. 

Comment [MNB20]: But then don’t start the 

first specific argument with a fact. Again, start the 

argument with an assertion about the key legal 

concept. 

Comment [MNB21]: But a grown man can be 

injured. How does that point relate back to the 

applicable test?

her, exited his car, and stood next to his car, causing the victim to run for safety. 

Id. at 3, 7. In addition, the victim’s neighbor had called the police to inform them 

that there was a man standing near the car “on a number of occasions.” Id. at 4. 

Furthermore, Ainslee was once seen by the victim’s father in the back yard of the 

victim’s family. Id. at 4. Finally, on one occasion, the victim’s father chased 

down Ainslee and yelled that “he knew what [Ainslee] was up to and…wasn’t 

going tolerate it.” Id. at 3. Yet, Ainslee continued to show up and park in front of 

the victim’s house. Id. at 4. These facts differ starkly from the facts in our case. 

Mr. Pemberque never exited the car, never followed Mr. Lani while he was 

walking, never approached the Lani house, and was never warned by the Lanis. 

A reasonable person in the same situation as Mr. Lani would not have 

reasonably feared because not only did Mr. Pemberque stay parked in one spot, 

but he also kept his distance and never approached the Lani house. 

It is difficult to predict how the trier of fact in our case will rule on the 

reasonable person standard as to the element of reasonable fear. We could 

argue that is not sufficient that Lewis Lani was “frightened” by Mr. Pemberque. 

The element of reasonable fear requires that the victim reasonably feared that 

the other person intended to injure him under all the circumstances. On one 

hand, it is possible that the court would distinguish Mr. Lani from the victim in 

Ainslee. Specifically, in Ainslee, the victim was a 14-year-old girl. Id. at 3. Mr. 

Lani is a 22-year-old male who is a registered sex offender and was recently 

released from prison. Furthermore, Mr. Pemberque has two young daughters 

ages 8 and 12 who he is trying to protect. In our case, though it may seem 

43 


Comment [MNB22]: You have given a lot more 

information about the analogous case here than you 

did in the case description above. As a reader, that 

makes me think perhaps I didn’t understand the 

court’s reasoning very well at the end of the 

analogous case description. You can get into more 

specifics about a case in the argument paragraph, but 

make sure you set up all the important concepts in 

the analogous case description, so that the reader 

does not have to reevaluate her understanding of the 

case in the middle of the argument section. 

Comment [MNB23]: Also, do all these details 

from Ainslee really relate to the same legal concept? 

I’m not sure that all these points really belong in the 

same paragraph, and I can’t tell where you are going 

with this argument – how are these facts going to 

connect up with our case? 

Comment [MNB24]: The facts from our case are 

always going to be different than the analogous case, 

so this sentence isn’t very helpful. In what WAY 

(i.e. with respect to what concept) are the facts 

different between the two situations? 

Comment [MNB25]: That may be true, but the 

reader wants to know your analysis. You can say 

“Although this would be a close call for the trier of 

fact” (or something like that), be bolder about 

making an actual prediction, and do so in the topic 

sentence for the mini-conclusion. 

Comment [MNB26]: By the time you get to the 

mini-conclusion, the focus should be on what the 

decision-maker would decide. Don’t just recap the 

arguments. 

Comment [MNB27]: And don’t restate the test. 

Instead, sum up how the test would be applied. 

Comment [MNB28]: You’ve made this 

comparison above – here, just talk about what 

conclusion the trier of fact would draw from this 

information. 

Comment [MNB29]: Don’t bring up new 

information in the mini-conclusion. If that fact is 

important to the legal analysis, then put it in an 

argument paragraph.


relevant to distinguish Mr. Pemberque’s background from that of Lewis Lani, it 

may be too risky to rely on the court finding that Mr. Lani did not reasonably fear 

that Mr. Pemberque intended to injure him. 

__________, 

Overall, nice job with this draft. The overall organization is good; the 

section starts with specific rules, then gives analogous case information, and 

then goes through the arguments for each side, and ends with a mini-conclusion, 

just as it should be in the script format. You’ve also done a very nice job in really 

wrestling with a variety of factual details from our case; it’s always important to 

focus on our facts, but that’s particularly true with a totality of the circumstances 

analysis like this one. The draft also has some good comparisons between our 

facts and the analogous case. And the writing mechanics are generally polished 

as well, which helps establish your credibility. As you revise, though, focus in 

particular on the following things: 

� First, make sure that the reader thoroughly understands the relevant law 

before you get into the argument paragraphs. If there are any other useful 

analogous cases to give the reader a more complete picture of the law, 

bring those in. If not, at least make sure that your analogous case 

description contains all the key points/concepts that you want to use for 

your arguments later. 

� With respect to the arguments, make sure that they are organized around 

legal concepts or points, not just narrow facts. Try to make the topic 

sentences of each argumentative assertion more principle based (e.g. Mr. 

Pemberque seemed to target Mr. Lani, instead of he knew about his 

schedule, or because the victim’s characteristics made him particularly 

vulnerable, rather than mentioning age or developmental delays). If you 

organize the arguments around concepts, that will help you make some of 

the comparisons clearer, and it may also help you combine paragraphs – 

some of the paragraphs here seem to relate to the same point, but using 

different facts. Organize by point, not by fact. 

� Finally, work on conciseness. That section in the LWH has good 

information about making sure that you make each point once (macrolevel 

conciseness), and it also has good information about helping you get 

rid of unnecessary words within individual sentences. The writing will be 

clearer and easier to follow if it is tightened up in both those ways. 

Overall, though, good start. 

44 

Comment [MNB30]: This wording is hard to 

follow.

Sample Student Draft for the Small Group Session on Critiquing 

MEMORANDUM 

To: Supervising Attorney 

From: Student, Legal Attorney 

Date: September 22, 2010 

45 


RE: Frank Pemberque, Charged with ‘Stalking’ under RCW 9A.46.110, Plea Bargain 

Discussion 

Issue 

There are three relevant legal questions that must be determined in order for Frank 

Pemberque to be convicted under Washington’s ‘Stalking’ statute, RCW 9A.46.110 

First, under Washington’s Harassment – Stalking Statute, RCW 9A.46.110, can it be 

established that Mr. Pemberque ‘repeatedly followed’ the victim when he admitted to 

regularly parking on his own street in front of the victim’s residence when the victim was 

at home? 

Secondly, under Washington’s Harassment – Stalking statute RCW 9A.46.110, can it be 

established that the victim had a reasonable fear of being injured or another being injured 

when Mr. Pemberque kept a four-inch blade on his passenger seat as he repeatedly parked 

in front of the victim’s residence? 

Lastly, under Washington’s Harassment – Stalking statute RCW 9A.46.110, did Mr. 

Pemberque intend to frighten, intimidate, or harass victim, or, did he know or should he 

have known that the victim was afraid when the police department warned Mr. Pemberque 

that his actions were frightening the victim? 

Statement of Facts 

Frank Pemberque has contacted our office asking for assistance with his felony stalking 

charge. Mr. Pemberque has been offered a plea agreement and you have asked me to 

determine whether the state will be able to prove all of the elements of stalking beyond a 

reasonable doubt. 

Mr. Pemberque lives at 4610 S.W. 327 th Pl. in Federal Way, Washington. He has resided 

at this location, with his two children, for about 12 years. 

Henry Lani is a convicted sex offender, and was released to live with his mother at 4621 

S.W. 327 th Pl. on July 19, 2010. Around that time Mr. Pemberque received a notice notifying 

him that a sex offender, Mr. Lani, was moving into his neighborhood.


Around the time of Mr. Lani’ release from prison, and the notice that a sex offender moved 

into the neighborhood, July 19, 2010, Mr. Pemberque started to park in front of the Lani 

Residence. According to police records he was parked in front of the house from about 

0900 until 1100 on Wednesdays, Thursdays, Fridays, Saturdays, and Sundays and almost 

all day on Mondays and Tuesdays. 

While Mr. Lani is not at his residence, he works at a local restaurant. Although some of 

Mr. Lani’ work hours are in dispute, both Mr. Pemberque’s statements to our office and the 

police records agree that Mr. Lani is definitely at work from 1200 until 2030 on Wednesday 

through Sunday. 

On July 30, 2010, at 1010 hours, the police department responded to a report of a 

suspicious man lurking in front of Mr. Lani’ residence. On August 3 rd , 2010, the police 

department responded to a second call to the Lani’ residence, at which Mr. Pemberque 

was warned that not to park in front of the Lani residence because it scared Mr. Lani and 

his mother. Mr. Lani acknowledged the officer’s warning by stating “I hear you” and drove 

off. 

Later that day on August 3 rd , the defendant was arrested while sitting in his car parked in 

front of 4621 S.W. 327 th Pl. Federal Way, WA. The arresting officer states that a four-inch 

blade was found on the passenger seat. Mr. Pemberque was identified owner of the car 

through his driver’s license, DOL records, and subsequent fingerprints after his arrest. 

Mr. Pemberque admits to our office that he parked in front of the house because he wanted 

to protect his children, Miles, age 11, and Chloe, age 9. Additionally, Mr. Pemberque states 

that he has been using the time sitting in his car working on bids and making business 

calls. 

Mr. Lani, in addition to being a sex offender, also has a developmental disability. Both 

Mr. Lani and his mother stated to police that due to Mr. Lani’ background, they were afraid 

of Mr. Pemberque, and thought he wanted to kill Mr. Lani. 

It is not clear whether or not Mr. Pemberque knew the Lani. He was able to restate 

some of the neighborhood gossip he heard about the Lani’ family circumstances, but also 

admits that he has never spoken to the Lanies, and has never threatened them or gone 

onto their property. 

Discussion 

The State has charged Mr. Pemberque with stalking under RCW 9A.46.110. This 

statute provides, in relevant part, as follows: 

(1) A person commits the crime of stalking if, without lawful authority and under circumstances 

not amounting to a felony attempt of another crime: 

(a) He or she...repeatedly follows another person; and 

(b) The person being harassed or followed is places in fear that the stalker intends to 

injure the person, another person… The feeling of fear must be one that a reasonable 

person in the same situation would experience under all the circumstances; and 

46

(c) The stalker…: 

47 


(ii) knows or reasonably should know that the person is afraid, intimidated, or 

harassed even if the stalker did not intend to place the person in fear or intimidate 

or harass the person. *** 

(4) Attempts to contact or follow the person after being given actual notice that the person 

does not want to be contacted or followed constitutes prima facie evidence that the stalker 

intends to intimidate or harass the person . . . 

(5) 

(a) Except as provided in (b) of this subsection, a person who stalks another person is 

guilty of a gross misdemeanor. 

(b) A person who stalks another is guilty of a class C felony if any of the following 

applies:.... 

(iv) the stalker was armed with a deadly weapon, as defined in RCW 9.94A.602 

while stalking the person; .... 

Therefore, to convict Mr. Pemberque of felony stalking, the State must prove each of the 

following elements beyond a reasonable doubt: (1) That on Mr. Pemberque repeatedly 

followed Mr. Lani; (2) That Mr. Lani reasonably feared that Mr. Pemberque intended to 

injure him; (3) That Mr. Pemberque reasonably should have known that Mr. Lani was afraid, 

intimidated, or harassed; (4) That Mr. Pemberque acted without lawful authority; and (5) 

That any of these acts occurred within the State of Washington. See WPIC 36.21. 

The courts have stated that “the State has a legitimate interest in restraining harmful 

conduct and may do so under the police powers which promote the health, safety and 

welfare of the public.” Thus, if the relevant stalking statute has a legitimate and important 

interest in protecting the overall safety of individuals with regards to potential stalking 

cases, then it may be justifiable. State v. Lee 

For purposes of this Memorandum, you have asked me to exclude from my research 

the following questions: (1) whether Mr. Pemberque was armed with a deadly weapon, 

and (2) whether Mr. Pemberque acted without lawful authority. Therefore, these elements 

will be excluded from analysis below. Moreover, it is undisputed that the purported crime 

occurred in the State of Washington. 

Instead, this memorandum will focus on the following disputed elements: (1) whether 

Mr. Pemberque repeatedly followed Mr. Lani, (2) whether Mr. Lani’s fear was reasonable, 

and (3) whether Mr. Pemberque intended, knew, or should have known that Mr. Lani would 

fear Mr. Pemberque’s actions.


Repeatedly Follows 

The Washington state stalking statute, RCW 9A.46.110(6) defines “follows” as 

following: 

(b) “Follows” means deliberately maintaining visual or physical proximity to a specific 

person over a period of time. A finding that the alleged stalked repeatedly and 

deliberately appears at the person’s home, school, place of employment, business, 

or any other location to maintain visual or physical proximity to the person is sufficient 

to find that the alleged stalker follows the person. It is not necessary to establish that 

the alleged stalker follows the person while in transit from one location to another. 

The Washington State stalking statute, RCW 9A.46.110(6) defines “repeatedly” as 

following: 

(e) “Repeatedly” means on two or more separate occasions. 

State v. Ainslie provides a useful and hard to find clarification on what types of facts 

contribute to establishing the element of repeatedly follows. State v. Ainslie, 103 Wn. App. 

1, 6-7, 11 P.3d 318 (2000). In that case, the defendant argued that “because he did not 

deliberately maintain contact with a specific person,” the defendant argues that it could have 

been possible that he was following anyone who happened to be around. However, The 

Court reiterated the fact that the defendant had been seen parked in front of the mailboxes 

near the victim’s house only at times when the victim was home, that he got out of his car 

once while the victim was walking by and even was seen in the victim’s yard once. The 

most important fact for the Court of Appeals in Ainslie was that the defendant was only 

seen in the victim’s neighborhood while the victim was there, but not while the victim was 

away in Spokane, Wa., and then seen again when the victim returned. 

First the State will successfully be able to prove that Mr. Pemberque ‘repeatedly’ parked 

in front of the Lani residence. The facts show that on at least two separate occasions the 

City of Federal Way Police Department observed Mr. Pemberque parking in front of the 

Lani residence. 

The State will also argue that that the defendant in this case is much like the defendant 

in Ainslie; Mr. Pemberque repeatedly followed the victim by appearing repeatedly and 

deliberately appearing at the victim’s home in order to maintain visual contact with the 

victim. Also the state will argue that Mr. Pemberque was only seen parking in front of the 

house during corresponding times when the victim was home, and not at his place of 

employment. 

We may be able to argue that unlike the facts in Ainslie that helped to establish that the 

defendant in that was repeatedly following that victim, our defendant never got out of his 

car. He was never seen leaving his car, making contact with the victim, or on the victim’s 

property. We may also argue that because Mr. Pemberque was sitting in a car on his own 

street, that it couldn’t be proven beyond a reasonable doubt that Mr. Pemberque was 

following a specific person, and that like the defendant’s argument in Lee, Mr. was simply 

48

49 


sitting in a public place and one that happened to be close to his own home. These facts 

can contribute to the argument that Mr. Pemberque was not actually trying to deliberately 

maintain visual or physical proximity with the victim in specific. 

However, the state probably has the strongest argument. The police department saw 

Mr. Pemberque repeatedly parking in front of the Lani residence on two occasions easily 

establishes that he “repeatedly” parked there. Additionally, the fact that Mr. Pemberque 

was seen repeatedly parking at the residence only when the victim was known to be home 

helps to show that Mr. Pemberque followed a specific person. 

Reasonable Fear 

The Washington State stalking statute, RCW 9A.46.110 defines a “reasonable fear” 

as: 

(b) The person being harassed or followed is places in fear that the stalker intends to 

injure the person, another person, or property of the person or of another person. 

The feeling of fear must be one that a reasonable person in the same situation would 

experience under all the circumstances. 

State v. Ainslie provides some clarification as to what types of circumstances about the 

victim that provide a ‘reasonable fear’ of being personally injured, another being injured or 

one’s property being injured by the stalker. In Ainslie, the Court stated that the fact that the 

victim was a 14-year-old girl, that she was “walking alone” and that her father warned the 

defendant by chasing him away all provided indication of the victim’s fear. According to The 

Court in Ainslie, “these facts are sufficient to elicit fear that is objectively reasonable.” 

Although what determines whether something is “reasonable” or not is not specifically 

defined in the statute, State v. Ainslie also attempts to clarify the definition by referring to 

the fear as “objectively reasonable”. 

In our case, the State will argue that the defendant had just been released from prison, 

and because of his status as a sex offender, he knew that he was more at-risk to be 

attacked, or more carefully watched by individuals in the general public in effect making 

him a targeted community member. Therefore, because Mr. Lani knew of his status of a 

sex offender, he had a heightened sense of fear of his surroundings. Furthermore, the 

State will argue that the victim had been known (Mr. Pemberque admitted to knowing) to 

have a developmental disability. Thus, the victim’s perception of a fear may have been 

slightly different than that of an individual without such a disability. In plain terms, Mr. Lani 

may have been more likely to conceive feelings of fear given his mental capacity, and as 

such his fear given his mental state was entirely reasonable. 

We can argue that the very fact that the victim was a sex offender makes his fear less 

reasonable in that, he would’ve known that by nature of being a sex offender, people 

might be more afraid of him, than he is of other people. Additionally, with the registration 

requirement that comes with being a sex offender, we can cargue that Mr. Lani is right 

to assume that people won’t target him because of the highly restrictive and watchful


precautions put upon him as a part of his release. We can also argue that the victim’s 

developmental disability shows that his fear may in fact not be “reasonable” at all, and 

that he might be more likely to make unreasonable conclusions about his surroundings, 

and the individuals in them. 

On balance however, there will be one factor that will help the State in showing that the 

victim’s fear of being injured, or another being injured (the victim’s mother, in this case) was 

‘reasonable.’ The record shows that Mr. Pemberque was warned by the Police Department 

that his actions were scaring the victim. The warning was based on a discussion that the 

police officer had with the victim’s mother, and upon review of a previous call about the 

defendant’s actions. In addition, the fact that Mr. Lani likely felt as if he were a targeted 

community member and that he had a diminished mental capacity will all help to establish 

that Mr. Lani’ fear was in fact, objectively reasonable. 

Intent 

The Washington State stalking statute, RCW 9A.46.110 defines the element of intent 

as either: 

intends to frighten, intimidate, or harass the person; or 

(ii) knows or reasonably should know that the person is afraid, intimidated, or 

harassed even if the stalker did not intend to place the person in fear or intimidate 

or harass the person. 

State v. Ainslie, provides a useful parallel set of facts to show what circumstances may 

contribute to establishing that a defendant knows or reasonably should know that the 

[victim] is afraid, intimidated or harassed. In Ainslie, although the defendant argues that the 

evidence does not support the establishment of this knowledge that the victim was afraid, 

The Court disagrees. According to the Court, the fact that the defendant was both warned 

by an officer that his actions were frightening the victim, and yelled at by the victim’s father 

with regards to his actions show that the defendant knew or at least reasonably should 

have known that his actions were causing the victim to be afraid. 

In our case, the state should be easily be able to prove that the defendant should have 

known that the victim was afraid. Like the warning given to the defendant in Ainslie, Mr. 

Pemberque was also explicitly warned by the police department that his actions were 

frightening the victim and his mother. The record shows that the victim and his mother 

specifically said that they thought Mr. Pemberque wanted to kill them. This warning is 

sufficient to show that the defendant should have known his conduct was scaring the 

victim. 

50

Conclusion 

51 


The State has overwhelming evidence against Mr. Pemberque, and the Court will probably 

find that Mr. Pemberque unlawfully stalked Mr. Lani. Although the cases that help define 

and clarify Washington’s stalking statute are limited, they are clear. Unlawful stalking is 

established if a defendant maintains visual or physical proximity of a person at their home 

on two or more occasions, if the victim’s fear of injury by that person is “reasonable”, and 

lastly if the defendant should have known that the victim was afraid. The state will likely 

be able to prove all three of those elements of the offense, and should Mr. Pemberque 

opt to go to trial, he will likely be convicted. That being said, it is in Mr. Pemberque’s best 

interest to accept the plea bargain while it is still available.

• 

• 

Legal Scholarship 

By Michael R. Smith 

University of Wyoming College of Law 

Outline 

The Three Core Components of a Legal Educator’s Job 

o Teaching 

o Scholarship 

o Service 

53 


Types of Legal Scholarship – Substantive Focus 

o Doctrinal law / legal policy 

o Lawyering skills (research, writing, litigating, negotiating, interviewing, coun- 

seling, etc.) 

o Law school pedagogy 

o Law school administration 

o Jurisprudence / Legal philosophy 

o Legal method / Legal analysis / The nature of legal authorities 

o Legal texts (judicial opinions, statutes, etc.) 

o Legal system (courts, judges, legislatures, agencies, etc.) 

o Legal procedure 

o Legal profession 

o Legal scholarship 

• 

• 

Types of Legal Scholarship – Sources of Supporting Information 

o Anecdote 

o Archival legal research (case law, statutes, legislative history, other legal 

articles, etc.) 

o Empirical research (original) 

o Interdisciplinary research 

� Interdisciplinary data (e.g., borrowed empirical research) 

� Interdisciplinary doctrine/theory 

Types of Legal Scholarship – Formats 

o Short pieces 

o Law review articles 

o Book chapters 

o Textbooks 

o 

Books by academic presses


• 

• 

• 

• 

Types of Legal Scholarship – The General Politics 

o Check with the written and unwritten expectations of your school 

o Anecdotal scholarship 

o Short pieces 

o Skills scholarship 

o Pedagogical/Administrative scholarship 

o Textbooks (scholar v. entrepreneur) 

Types of Legal Scholarship – The Politics of Legal Writing Scholarship 


o Historically, there has been little serious substantive legal writing scholar- 

ship 

o The statistics: 

� 75% of LW teachers write on topics other than legal writing 

� Of the remaining 25%, the majority of the pieces are on legal writing 

pedagogy or administration 

� Of the small percentage of pieces on substantive legal writing topics 

(legal writing doctrine), a large percentage of them are anecdotal Aanec- 

not dotal@ based (not on based serious on research serious research) 

o The consequences of this history: 

� It sends the message that Legal Writing as a discipline lacks doctrinal 

substance 

� It sends the message that Legal Writing as a discipline lacks intellectual 

rigor 

� It squanders the expertise of Legal Writing Academics 

� Scholarship on non-legal writing topics advances the individual, not 

the discipline 

Choosing a Topic – Sources of Ideas 

o An issue from practice 

o An issue from an assignment 

o An issue from a colleague 

o National Aconversations@ conversations 

(conference presentations, email listserv, exist- 

ing pieces) 

o A substantive legal area of interest 

o A specific type or area of practice (e.g., appellate practice, pretrial prac- 

tice, transactional drafting, etc.) 

o A interdisciplinary area of interest 

o Concerns of the bench and bar 

Choosing a Topic – General Pitfalls to Avoid 

o A topic that is too big 

o A topic that is too local 

o Preemption 

54

• 

• 

• 

• 

• 

• 

Choosing a Topic – Some General Strategies 

o Shorter pieces evolving into longer pieces 

o Testing a topic with a conference presentation 

o Getting more than one publication out of a single topic 

Finding Time to Write 


o Two approaches: 

� Some time every day or every week 

� In the summer 

o Pitfalls to avoid: 

� Letting teaching consume all your time 

� Letting service (school or national) consume too much time 

Resources – Within Your Own School 

o Research or faculty development deans 

o Mentors (formal or informal) 

o Law librarians 

o Student research assistants 

o Your secretary 

o Release time / Sabbatical 

o University Institutional Review Board 

Resources – Outside of Your School 

o LWI Writer’s Writer=s Workshop 

o ALWD Scholar’s 

Scholar=s Forum 

o Regional legal writing conferences that host writing workshops 

o Mentors 

o Faculty scholarship exchanges 

Funding Sources for Scholarship 

o Summer research grants 

o Scholarship grants from organizations such as LWI and ALWD 

o University grants for research 

o Other research grant opportunities 

Places to Publish Articles 

o Generally: 

� General law reviews 

� Specialty journals 

o Short pieces about legal writing: 

� The Second Draft (LWI) 

� The AALS Section Newsletter 

� Perspectives 

55 



• 

• 

o 

Peer-edited journals for legal writing: 

� Legal Writing: The Journal of the legal Writing Institute 

� Legal Communication & Rhetoric: JALWD (formerly The Journal of 

the Association of Legal Writing Directors) 

� The Scribes Journal of Legal Writing 

Submitting an Article for Publication 

o Individual mailings 

o Mass submission services: 

� ExpressO 

� LexOPus (Washington & Lee) – Closed 2011 

Conclusion 

56

Six Aspects of Course Planning 

� 

� 

� 

� 

� 

� 

Defining goals 

Choosing texts 

Planning your syllabus 

Using a course web site 

Course Planning 

By Amy E. Sloan 

University of Baltimore School of Law 

Teaching effectively in the classroom 

Assigning grades 

Two Overarching Principles 

57 


� Keep your eye on the ball: Use the course goals to focus your syllabus 

planning, development of assignments; critique of student work, and all other 

aspects of your course. 

� Don’t reinvent the wheel: Use the resources available to help you plan and 

teach your course effectively. Resources you can use include: 

o Legal writing faculty at your school 

o Professional organizations: These offer web resources, e-mail listservs, 

publications, national and regional conferences, and more. 

� 

� 

Legal Writing Institute (LWI) – www.lwionline.org – Sponsors the 

Idea Bank with syllabi, teaching ideas, memo and brief problems 

Association of Legal Writing Directors (ALWD) – www.alwd.org 

� Institute for Law Teaching - http://lawteaching.org/ 

o Perspectives: Teaching Legal Research and Writing (subscribe at west. 

thomson.com/store/promotions/newsletterssignin.aspx)


1. Defining Goals 

A. Set realistic goals: A first-year legal research and writing course is an introductory 

course; it cannot and should not cover everything students need to know to 

practice law. Use the specific goals for your class to prepare your students for the next 

steps in their legal education and to equip them with problem-solving skills. 

� 

� 

� 

� 

� 

� 

� 

Ask: What do students need to know to be prepared for their first summer 

jobs or upper-level coursework? 

Consider: Class size and credit hours for your class 

B. Typical analysis, writing, and oral advocacy goals for the first year: 

Ability to extract common law rules 

from cases (including case synthesis) 

Ability to analyze a statute 

Ability to organize legal analysis using 

IRAC (or some similar) organizational 

scheme 

Familiarity with the formats of office 

memos and pretrial or appellate briefs 

C. Typical research and citation goals for the first year: 

Ability to research secondary sources, 

cases, and statutes and to use citators 

Ability to research electronically using 

Westlaw, Lexis, Google Scholar 

Ability to research in print as you 

believe necessary and as your library 

collection will allow 

58 

� 

� 

� 

� 

� 

� 

� 

Ability to analyze a fact pattern that 

has factual tension 

Ability to analyze a fact pattern that 

has legal tension 

Ability to express analysis in writing 

using objective (predictive) and 

persuasive tone 

Ability to convey analysis orally 

through pretrial or appellate oral 

argument 

Ability to develop and execute a research 

strategy 

Ability to cite cases, statutes, and 

secondary sources 

Ability to integrate citations into a 

written document

� 

� 

� 

� 

D. More ambitious goals: 

Familiarity with document drafting (e.g., 

pleadings or simple contracts, client 

letters, jury instructions) 

Familiarity with negotiation techniques 

Familiarity with client interviewing or 

counseling 

Familiarity with rules of professional 

responsibility/ethics 

59 

� 

� 

� 


Ability to research legislative history, 

administrative regulations, local 

ordinances 

Ability to research with looseleaf 

services 

Familiarity with a wider range of electronic 

research sources, including 

Hein OnLine, Fastcase, Casemaker, 

and LoisLaw 

The bottom line: No one gets through all of this. Prioritize your goals, and develop assignments 

with your primary goals in mind. 

2. Choosing a Text 

A. Options: 

� Writing text 

� Citation workbook 

� Research text 

� Your own materials and handouts 

� Combined research and writing text � Vendor materials 

� Research workbook 

� Style manual 

� Citation manual ( Bluebook or ALWD 

Manual) 

B. Considerations in text selection: 

o 

o 

o 

o 

o 

� 

Specialty writing texts (e.g., persuasive 

writing, legal drafting) 

Choose what you will actually use, not every possible resource that might 

be helpful for students. 

Look for books with approaches you like and depth of coverage appropri- 

ate for your course. 

Consider texts with sample documents/classroom exercises/research ex- 

ercises/citation drills to avoid having to create those materials yourself. 

Consider custom publishing that combines material from multiple texts. 

Incorporate your own materials and vendor materials as appropriate, but 

not as your only course materials.


The bottom line: No text is perfect. Ask your faculty colleagues for advice about text 

selection. Look for the best mix of approach, coverage, and material you can use in 

class. Use the Teacher’s Manual and other supplemental materials accompanying your 

text. Use resources such as the LWI Idea Bank for material to supplement your text. 

3. Planning Your Syllabus 

A. Look at examples of other professors’ syllabi: Faculty colleagues will 

share their syllabi. Teacher’s Manuals may include sample syllabi. Syllabi for similar 

courses may be publicly available on faculty web pages or included in the LWI Idea 

Bank. 

B. Working with the details: 

o 

o 

o 

o 

o 

Include your contact information and any course policies regarding atten- 

dance, late papers, etc. 

Work backwards from the end of the semester to fill in due dates first and 

sequence other material within that framework. 

Assign a manageable number of assignments. 

Build in breathing room for yourself during periods of grading or confer- 

encing. 

Don’t feel compelled to distribute a detailed syllabus on the first day. 

The bottom line: You probably won’t have a detailed plan for every class at the start of 

the semester. At a minimum, provide students with a general plan that includes topics 

that will be covered, major assignments, and due dates. Supplement that plan as necessary 

over the course of the semester. Keep your class preparation two weeks ahead 

to allow time to add to or adjust reading assignments and class plans. 

4. Using a Course Web Site 

A. Reasons to use a course web site: 

o 

o 

o 

o 

o 

Your students will expect one. 

You will be able to build your syllabus gradually over the semester. 

You will save paper by posting course documents. 

You will be able to email or blog with your students to improve communi- 

cation between classes. 

You will be able to post videos, web links, and other materials that add 

value to your course. 

60

B. Options for course web sites: 

o 

o 

o 

61 


Vendor products like TWEN (Westlaw) and Blackboard (LexisNexis) 

Publisher products like TeachingLaw.com (Aspen) 

Your school’s platform 

The bottom line: Faculty colleagues at your school may be able to enroll you in their 

sites to give you ideas for creating your own site. They may also be willing to copy their 

sites for you so that you’re not building a site from scratch. 

5. Teaching Effectively in the Classroom 

A. Use a mix of teaching techniques: 

� Lecture 

� In-class research 

� Think-pair-share exercises 

� Peer review 

� Group drafting activities 

� Quizzes 

� Freewriting 

� Assigning students to present material 

B. Get your students working interactively from the beginning of the semester. 

C. Consider distributing an informal mid-semester evaluation 

The bottom line: Interactive classes give you less control. Don’t be afraid to take some 

risks, and don’t worry if every activity doesn’t work perfectly. You set the tone for the 

class; students will pick up on your enthusiasm and will look forward to a break from 

their casebook class routines. 

6. Assigning Grades 

A. Think back to what you’ve already learned at this conference about assessment, 

critique, and feedback. 

B. Learn the grading policies and culture at your school: Are your grades 

subject to formal policies such as a mandatory average or distribution? If not, do faculty 

follow informal grading practices, such as grading major assignments anonymously? 

C. Make your process transparent and consistent: Give students the criteria 

against which their work will be measured before assignments are due. Use a rubric, 

outline, or checklist when you review student work to ensure consistency. 

D. Consider using a mix of ungraded and graded work to give students an 

opportunity for risk-free trial and error as they develop their skills.


The bottom line: Although you should try to focus your students on the learning process, 

understand that students have a lot riding on their grades and will be concerned 

about grades. Every institution has its own grading norms; make sure your grades and 

grading policies are consistent both with the school’s formal policies and any unwritten 

grading norms. 

APPENDIX: SYLLABUS PLANNING CHART 

This is the type of chart I use to map out my syllabus each semester. 

Week 1 Class 1: 

Class 2: 


Class 2: 


Class 2: 


Class 2: 


Class 2: 


Class 2: 


Class 2: 


62 

Class 2: 


Class 2: 


Class 2: 


Class 2: 


Class 2: 


Class 2: 


Class 2:

Notes 

63 



Notes 

64

Notes 

65 



Renaissance Mayflower Hotel Floorplan 

66

Workshop for Beginning Legal Writing Teachers - AALS

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