Oregon State Bar Bulletin OCTOBER 2013
The Legal Writer
Creating Knowledge Through Notes
By Suzanne E. Rowe
Most articles in this column address the finer points of a final document: how to edit and then proofread to ensure that your document is grammatically perfect and professionally presented. This isn’t one of those articles.
Instead, this article addresses the other end of the writing process, when you first meet with someone and write down the key ideas that will form the basis of your research or the backbone of your document. Lawyers take notes in many situations — a supervisor wants to talk about trial strategy, a client is coming to discuss his will, you need information from an upcoming CLE presentation. Take note: this article is about effective note taking.
Create, Don’t Copy
Taking notes should generate knowledge. You are (or should be) engaged in a three-way dance: what you hear, what you think and what you write. Taking notes allows you to create an external memory bank that reminds you not only what you heard but also what you thought when you heard it. That’s far more valuable than either a set of PowerPoint slides (recording only a portion of what you heard) or colleagues’ notes (recording what they heard and what they thought).
Generating knowledge is different from copying someone else’s words. You’re more likely to remember your thoughts if you write your notes with your own words rather than slavishly recording what the speaker said. Moreover, simply transcribing the meeting can waste time. It means you’ve delayed the important thinking work until later — you’ll still have to do it, after reading the transcription. Few meetings are so scintillating that I want to experience them twice, once in real time and again with a verbatim transcription.
Pick Your Poison
How will you take notes? You have the choice of typing on your computer (or other device) or writing on a yellow legal pad (though other colors may suffice). Each has its advantages and drawbacks.
You might opt for electronic note taking because you can’t remember how to write or because your handwriting is illegible. Maybe you type faster than you write. You might appreciate being able to search your notes later for a key term using the “find” function. But the device you consider an extension of your hand might make a client feel uncomfortable, especially if you tend to make eye contact with the device rather than the client or if the device blocks your sympathetic body language. When using an electronic device, be sure that you have a method for drawing figures or scribbling timelines. Some pads have this feature, but I’m a Neanderthal, so I keep a 4x4 sticky note on my laptop; on a good day, I have a pen to accompany it.
If you still remember how to write by hand, a pen and paper are less obtrusive in some situations than an electronic gadget is. An added benefit is that your slower, old-fashioned note taking might encourage you to analyze the conversation as it unfolds — you’ll have to decide what is important enough to write because it’s impossible to record every word as a stenographer would. That immediate analysis might prompt you to ask a question while the client is sitting with you, as opposed to realizing later that you have an important question that remains unanswered. The downside to paper notes, for me at least, is that I never have any idea where I’ve put them.
Location, Location, Location
To take good notes, you have to be located where you can hear what’s being said. If the client has a soft voice or you’re in a large hall, try to be as close to the speaker as possible. Optimally, you’ll be in a position to see the speaker’s body language, too. You’ll also want to be able to read any documents (imagine sitting across a small table in a client interview) or any text that is projected overhead (consider a CLE presentation). And, you’ll want to be away from any distraction, whether it’s the road construction you hear outside the door or the attractive lawyer you noticed as you walked into the room.
Then you have to be an active listener. Engage fully in what’s being said. Letting your mind wander for just five seconds could leave you scrambling to understand where the conversation is heading. While we all think that we can multi-task — just checking email quickly — the science shows that — and what was the score of the game? — diverting our attention — oh, a quick text to my secretary — weakens the work we do on — one more game of Angry Birds — each of the tasks that we’ve tried to multi.
Use Your Head
Using your head means using headings, both at the beginning of your document and for major themes that emerge. Start each page or each document with a heading. On the first page, record the date, the location, the parties present and the purpose of the session. Repeat on subsequent paper pages enough of that information so that you can keep them together; number pages to keep them in order, especially after you tear them out of the pad. Related electronic documents should have similar headings and be saved to a common folder.
As the session progresses, try to identify major themes and use headings to emphasize those. These headings will make reviewing key ideas easier, especially if you have to put the project aside for several days.
Know Your System
You likely know from experience whether you are most effective taking notes in strict outline format, with bullet points or in loose paragraph form. If your system is no longer efficient, try a new one.
Within any system, develop codes to mark particular points or people. Mark “???” before questions or uncertainties in your notes. Enclose your own ideas in brackets to avoid confusing them with someone else’s explanation. If several people are contributing to the conversation, indicate who raised or supported an idea with initials and a colon (e.g., HB: supports aggressive approach).
Save time and space by abbreviating. “Plaintiff” easily becomes P or the symbol for pi. Abbreviating lets you avoid menial details like spelling, so you have more energy to invest in real thinking.
Quick aside: I’m astonished when I watch a student writing every letter of every word of an important idea. Instead of scribbling, “A/P aff’d,” the student will laboriously write, “T-h-e a-p-p-e-l-l-a-t-e c-o-u-r-t a-f-f-i-r-m-e-d a-d-v-e-r-s-e p-o-s-s-e-s-s-i-o-n i-n t-h-i-s c-a-s-e.” I sit by patiently, ready to move on to other, equally important ideas. Multiply that example by several instances and the student has lost valuable minutes in our meeting.
Similarly, don’t write notes in complete sentences. Your notes are just for you. I promise not to appear ghostlike next to your desk demanding to see whether you used appropriate independent clauses, punctuated correctly, with flawless syntax.
Make Space and Use Colors
Use white space liberally. The point of taking notes is to be able to read the document later and make sense of it, not to cram everything on one page.
If you remember things spatially, as I do, use particular parts of each page for specific information. For example, on paper, you might keep the left margin clear for “to do” items that come up during the conversation. Online, you might embed comments or open a second document where you dump similar information. The “to do” items might be talking to a colleague about a promising legal claim, looking up a key term or remembering to pay the electric bill. Quickly writing down each “to do” item frees your brain to focus on the task at hand; putting it in the same space on the page allows you to retrieve related items quickly.
Using colors can also help you categorize information as you record it. Real and virtual highlighters can identify action items in green, outstanding questions in red, cautionary notes in yellow and so on.
A corollary to the rule “don’t write down every word” is “don’t write down words that are available elsewhere.” If your supervisor is reading aloud a statute for the trial team to dissect, record the citation, but don’t rewrite the statute in your notes. Instead, listen and think. If the person leading the CLE presentation quotes a portion of her materials (either orally or on a PowerPoint), don’t rewrite those words. Pay attention to any special emphasis she adds while reading and note any extra explanations.
Listen for Verbal Cues
Speakers provide clues about what they think is important. Here are some oral cues that should make your ears stick up and make your fingers start writing:
My biggest concern is …
As I said earlier …
Remember that …
The main point is …
Don’t forget that …
The four steps are …
That’s right ...
The essence is …
The bottom line…
Impose Order on Chaos
The speaker — your supervisor, your client, the CLE presenter — might not present ideas in a logical order. You can impose order on the chaos in your notes by numberings things in a sequence that makes sense or by drawing arrows to put parts in place. When gathering facts in a timeline, number them in the order in which they occurred (as opposed to the order in which the speaker mentioned them). Maybe drawing arrows is harder on your computer, but you might quickly be able to cut and paste or to add directions like “move to beginning.”
Soon after the session ends, review your notes. Complete any thoughts that you didn’t have time to record fully. Add ideas that you remember now but did not write down. Insert headings, especially if you were not able to identify major themes until the end of the session. Create an action plan — what do you need to do next? Put dates and deadlines on your calendar.
Taking notes is just the first step, but doing so effectively can carry you a long way toward producing a perfect final product.
Suzanne E. Rowe is the James L. and Ilene R. Hershner Professor at the University of Oregon School of Law, where she directs the Legal Research and Writing Program. She is grateful to Amy Jarman, Susan Bakhshian and Mary Beth Beazley for sharing their notes on taking notes.
ABOUT THE AUTHOR
Suzanne E. Rowe is the James L. and Ilene R. Hershner Professor at the University of Oregon School of Law, where she directs the Legal Research and Writing Program. She appreciates the comments of Elizabeth Frost, Amy Nuetzman and Lauren Russell on several of the multiple drafts of this article. If only the subjunctive were easy!
An archive of The Legal Writer articles is available here.
© 2013 Elizabeth Ruiz Frost