How to effectively teach law students legal research and writing?

August 1, 2008 1:59 PM

How to effectively teach law students legal research and writing?

Next semester, I will be assisting with my law school's legal research and writing program, which is a mandatory year-long course for all first-year students. My involvement will include helping students brainstorm their assignments, reviewing preliminary drafts of student memos and briefs, providing them with feedback via written comments and one-on-one meetings, and just generally being available for random questions they may have as they work on their written assignments.

I had a tremendously effective instructor when I went through the program myself, but I've also had several friends whose instructors were apathetic, ineffective, or - despite their good intentions - simply inept. I think being able to write well is a critical skill for any lawyer (though I have my reservations about being able to teach those skills to someone over 9 months), and I'd like to be able to help my students become better writers. With that in mind, I'd appreciate hearing from people who have had experiences with writing instructors, teachers, etc. - both the good and the bad. Although I am of course interested in hearing the more technical aspects of your experience with them, it would also be great to learn about the more personal characteristics that you feel may make an instructor great / terrible.

Thanks!

posted by jagalt to education (24 comments total)

I'm a rising 3L. My $.02:

Make sure they're good at bluebooking, but stress why bluebooking is important to learn now, and how much knowing the rules by heart (or at least how to use the bluebook) in the future. The same goes for writing clearly; stress how court clerks will start to blow through your briefs if you write poorly.

Stress that legal writing is a different *kind* of writing, and that it's almost a return to the 5 paragraph structure everyone learned at the beginning of high school.

Let them learn by doing.
posted by craven_morhead at 2:14 PM on August 1

Recent law school grad here. I came from a science and math background, and I did not really start improving as a legal writer until my 3L year. I feel like my LRW class could have been structured better, so I'll share what I think my LRW class did wrong.

Take the time to do multiple non-anonymous, ungraded assignments before heading into the anonymous, graded ones. Then, have multiple graded assignments, rather than a single large one.

It's ridiculous that at many schools the first real writing assignment basically decides ones first semester LRW grade, which in turn has a disproportionate effect on ones first summer employment, and so on. If people complain about short deadlines, remind them that when they are working they won't have a whole month to work on a memo--they may not even have a whole day.

Do emphasize the importance of Bluebooking, especially if it's a big part of the law review write-on competition. Take the time to step through examples of each of the most important kinds of citations (Federal and state trial and appellate cases, state and federal statutes, law review articles). Don't just hand them the Bluebook and say "look it up." Frankly, I would have appreciated worksheets. Bluebooking is one of those few things in the law where there is a clear, objective answer. Take advantage of that.

Give meaningful, particular feedback. If a student does something wrong, tell them what they should have done rather than simply identifying what they did wrong. My LRW professor would only ever give negative feedback (i.e. "don't do that"). It would often take several assignments before I finally figured out what she wanted. I couldn't just ask what I should be doing because that would have violated anonymity, which is another good reason to have lots of non-anonymous, ungraded exercises.

Use model good and bad answers, whether of your own devising or as a composite of student work. Make it clear that there are good and bad ways of doing things, and show what to do and what not to do. Bonus points for showing how bad writing can be revised into good writing.

Be patient but firm. Don't let them mistake kindness for weakness. Let them know that there is a right way and a wrong way and do not hesitate to let them know if they're doing something wrong.

As an example, one thing I hated about my LRW professor is that she would say things like "I looked at the drafts and I think you're all doing great." Because of the way the curve works, that was just objectively false. Let people who will be outside the top third (or whatever) know ahead of time, if at all possible. Always give people a curved grade. I would see a grade like a 90% and think "oh, I'm doing fine." But it wasn't curved. By the time the curve rolled around, I'd be smack in the middle, which might as well be dead last at most schools.
posted by jedicus at 2:42 PM on August 1

I started law school with a fondness for arguing and a formalistic approach. If my argument followed logically I must be right, and therefore the other side must be wrong. My first writing project came back with mostly complimentary comments: novel argument, creative, but needing more support.

I object to the TA, pointing out that one of the elements of the case, on which I had focused almost all my attention, was clearly lacking. My analysis was based on logic - was I supposed to provide support for logic?

My TA wisely refused to engage in the argument. She acknowledged that I was probably right, but insisted that I do more research on how courts interpreted the issue. Had she argued with me I would have probably just dug my heels in. She could have pointed out arguments for the other side, but I doubt I would have given them serious consideration.

Instead, she cut off my arguments by allowing that I was right but still insisting that being right wasn't enough. Eventually I realized that both sides of a case could be "right," and that having a logical argument was the beginning, not the ending.

In short, what made my TA good was that she recognized my misunderstanding of how the law works and was patient with me while I figured it out.
posted by Hermes32 at 2:44 PM on August 1

If you're giving a lecture, don't just say point after point as if you were simply dictating notes for yourself. Repeat and dwell on each point. For instance, if I were making this point in a lecture, I'd say it again: You should repeat every point you make, because people don't take things in the first time.

Give examples for everything. I was in a class where a TA was trying to explain the Bluebook's "rule of 5" to us, and he explained it over and over in the abstract. We kept not understanding it. He could have saved us all a lot of trouble by writing out a bunch of call numbers and specific cites as an example.

Along the lines of hermes' above comment, don't be afraid to justify certain rules based on "That's just how it's done -- if you do it a different way, it will look wrong." If the prof wants them to have a cite after every single sentence in the law and application sections of a memo, then that is the correct way to do it, no matter how brilliant the student thinks their own abstract reasoning is. Conversely, you should be able to explain the rationales behind the rules, e.g. not just "Don't use passive voice," but "The passive voice is weak here because ___ -- if you change it to active it becomes stronger because ____."

Don't try to seem like an average law student who doesn't really care about the rules. It's your job to take it seriously. There will always be some students who think this stuff is a waste of time -- just don't worry about them. Assume that whoever you're interacting with at the time is really interested in Bluebooking and grammar. At worst, your enthusiasm won't make a dent; at best, it'll wear off on them.

If you don't know the answer to something, you should readily admit it. If you give an ad hoc answer and it ends up conflicting with the prof's view, you'll end up looking bad.

Don't hedge. Put things in clear black and white terms: "This is right; this is wrong." Don't give off a vibe of "Oh, it doesn't really matter that much," even if it's about the tiniest little thing like italicizing commas. Your job is to have authoritative knowledge and set high standards, not to ingratiate yourself to the students or make them relate to you. If you can also make them relate to you as an equal, that's great, but that's a decidedly secondary priority.

Never, ever, ever be openly exasperated at someone for not getting something that's "so obvious," no matter how basic it is. When you're a 1L, nothing is obvious.

I've thought a lot about this, so feel free to MefiMail if you have more specific questions.
posted by Jaltcoh at 2:58 PM on August 1

I had that gig for two years. Taught me a lot. But it's such a broad question it's hard to zero in on anything to tell you.

First, the professor you're assisting will no doubt have a lot of instructions and tips for you. You won't have to reinvent the wheel.

Teach them the maxim that good writing is writing that cannot be misunderstood. It's not enough that it can be understood after the student babbles at you for a half-hour across your desk.

Be sure you work with the students on distinguishing when an authority is on all fours with your facts, vs. merely on all threes. In real life a judge will be looking for authorities that tell him what he has to do in the case at hand. A student-type argument that a prior case, while not really the same circumstances, should somehow inspire the judge to do the right thing -- what is that, "cf."? -- well, most judges won't have time for such an argument. They might even yell at you.

If a prior case involved a car and the court used the word "vehicle," it's fatal to just drop that case into a brief about a bicycle - although a bicycle is no doubt a vehicle - without a further explanation about why a case about cars should also apply to a case about bikes. The court will know that you were trying to put one over. If you were planning on whining, But Judge, a bike is a vehicle, right? -- well, just grow up.

Remind them that they must be absolutely factual (in the real world we call that "truthful," but law school is concerned with law, not morality) in their writing. The judge or the clerks are going to be scruitinizing every word. Use the same words that the authority uses, or you will lose all credibility. There's no need to vary the words, as a novelist might, to improve the beauty of the writing. If the word is the right word, it's OK to repeat it.

Extinguish the word "technically" forever. If an argument is right -- ok, "arguable" -- then it's right. If you say it's "technically" right, it needlessly undercuts the argument. Try dropping that word from all writing forever.

Strunk & White's "The Elements of Style" will never go out of style. Good luck.

(On preview, wow, a lot of legal writing geeks out there.)
posted by JimN2TAW at 3:01 PM on August 1

"Clearly" also has the same meaning as "technical." If something is "clearly" right, there would be no need to say it is clearly right. Straight from my 1L legal writing instructor.

I will tell you what is missing from the clerks I've seen. They don't put things into a formal structure. I'm an administrative litigator who practices before ALJ's with a lot of motion work and I see other lawyers miss it too, even from the big firms. I have an introductory sentence that lays out the entire argument like so: Complainant is entitled to judgment because (1) X; (2) Y; (3) Z; (4) A; (5) B; and (6) C. The sentence is not smooth. It clunks along. But then I cut and paste that exact sentence, word for word, into the beginning of my analysis introduction and again at the end of the pleading. Word for word.

Each of my subheadings in the analysis section corresponds exactly to one of the points in the intro. If it does not, make it by modifying one or the other.

I knew I was on the right track when I drafted an emergency motion for my old boss (which we were going to lose) and the judge wrote that "Appellant argues he is entitled to judgment because (1) X; (2) Y; (3) Z; (4) A; (5) B; and (6) C.

As for regular motions, my structure is as follows: Intro, Background (the facts), Analysis, Conclusion. I make sure every fact that needs to be in the analysis section is up there in the background. You wouldn't believe the number of practioners who miss this.

Also, I cannot recommend enough Mauet's Pretrial. Damn thing is a recipie for victory.

Emphasize that legal writing should neither be fun to read nor interesting. It should inform the decision maker what the basis for your argument is and persuade through rigorous application of facts to the rule of law.
posted by Ironmouth at 3:14 PM on August 1 [4 favorites]

Also, don't let it get in the way of your studies. My dad lost his #1 ranking because of that.
posted by Ironmouth at 3:15 PM on August 1

"Clearly" also has the same meaning as "technical." If something is "clearly" right, there would be no need to say it is clearly right.

Right you are, Mouth. And "the simple fact that ..." is probably not simple at all, and one wonders whether it's even a fact.
posted by JimN2TAW at 3:21 PM on August 1

Have them review selections (your selections) of real-life briefs from a site like http://www.abanet.org/publiced/preview/briefs/ to see how it is done by professionals.

And have them read Ken Adams' weblog on a regular basis. Lots of good useful stuff there.
posted by yclipse at 3:43 PM on August 1 [1 favorite]

I'm going to take a different angle on this. Have them read nonlegal writing. Good nonlegal writing. Lots of it. Heavily directed toward the simple and direct -- think Hemingway, Kafka, Borges (in particular, for the notion that insanely complicated ideas can be expressed in simple and direct ways), famous speeches, etc.

The chief curse of legal writing is that it's just bloody bad AS WRITING. The styles of thinking and reasoning that make up good legal *argument* can be picked up by osmosis in law school by reading enough cases and being beaten around in socratic classrooms. But the writing style cannot be picked up that way, because legal writing is ALMOST ALL TERRIBLE, even from the greats (I remember reading an utterly incomprehensible Oliver Wendell Holmes case in 1L civ pro).

It might also be helpful to have them read well-written examples of really difficult analytic arguments. Certain philosophers (David Lewis and Bertrand Russell come to mind) are good for this, although they might have a bit of trouble catching the points on some of the topics involved.
posted by paultopia at 6:31 PM on August 1

you have mefi mail
posted by dicaxpuella at 6:45 PM on August 1

Emphasize that legal writing should neither be fun to read nor interesting.

I don't disagree, but far more important IMO is that legal writing should be easy to read. I mean, easy for other lawyers. Easy for busy judges. So that the reader can trot along and not get jammed up with a dense convoluted sentence.

Nthing deleting most adverbs and a good portion of the adjectives. They're important but way over used by most lawyers.

Jocelyn Larkin of The Impact Fund has a great powerpoint presentation on strong versus not-strong legal writing. With passage A and passage B stating the same point, but one being really clear and one making all of the classic mistakes. You might see if she's published any articles or if she'd be willing to share.
posted by ClaudiaCenter at 8:29 PM on August 1

I would start by giving them the confidence to worry about refining the structure by freeing them of the pressure of style early in the course. As a 1L, I remember what a shock it was for me to get used to writing short, choppy sentences. The issue is x. The applicable rule is y. Here is my analysis. The conclusion is z. What a weird way to write! Maybe that came naturally for some people, but for me, it felt foreign - like I was in elementary school again.

Later on in the semester, when we got to start doing persuasive, instead of predictive writing, the adjectives came back and I was able to use them more precisely and efficiently to increase the effectiveness of my writing. I think if I'd been able to appreciate this on a meta-level at the time, rather than only now on hindsight, I could have spent less time and stress on LR&W (or at least, used the time more efficiently) and more time on my substantive coursework.

I wish that I could have had some individual feedback in the form of an initial assessment early in the course to give me permission and freedom to focus completely on structure. If I'd had an individual roadmap for what I needed to improve in my writing, I could have had a clearer sense of how to interpret and apply the lectures relative to my writing, rather than some abstract norm of legal writing.

I will disagree with the above who say that legal writing shouldn't be interesting. I think persuasive writing can and should be interesting . This is where the majority of advocacy for your client happens. This is where you get to tell your client's story, explaining to the judge how the facts, as applied to your case, give your client the win.

Then again, maybe law school just completely lowered my threshold for what's interesting.

[After the bar exam this week, I'm thankful I can form complete sentences at this point.]
posted by Dr. Zira at 10:08 PM on August 1

Two things:

1. Give them interesting bits of real legal and non-legal writing.

2. Have them practice in class. Have them do as much writing as they possibly can, and give them feedback on as much of it as you possibly can. Have them give each other feedback.

3. Please don't waste your time giving boring lectures to the class, which is very easy to do in a subject as dry as legal writing can be. You can tell if you're giving a boring lecture if people look bored in your class. If you can't tell, you're probably boring them.
posted by shivohum at 8:12 AM on August 2

Whoops, that was three things. Heh.
posted by shivohum at 8:12 AM on August 2

Unfortunately, IRAC, IRAC, IRAC. Ugly and boring, but it works. Honestly, it's so formulaic that you shouldn't even have to put that much thought into teaching it. The hardest part will be hitting your poor students over the head with it, repeatedly.

Also, learning to think and write like a lawyer is very similar to new language acquisition. When you're learning a new grammar, one of the most helpful things to do is read in the new language. So, you should give your students well-written briefs to read, not opinions, so they can learn how to write like lawyers, not like judges!

1Ls read tons their core classes, so it might seem like strange advice to give them more reading in their writing class, but the problem is that they're not reading advocacy: they're reading excerpts of ancient foundational cases like Pierson v. Post (fun catchwords, as mefite Saucy Intruder knows) or the most emotive excerpts of grand, flowing Supreme Court and appellate opinions. These opinions may be beautiful and important, but they usually have very little relation to the actual work of a lawyer as an advocate. One of the great shortcomings of law school is that it trains students to be great Supreme Court opinion writers, but pretty much ignores the task of advocacy.
posted by footnote at 8:15 AM on August 2

Ironmouth nailed it, but here's a slightly different way of understanding this critical point: teach your students to analytically examine the structure of the statute/authority that they are applying in their memos.

Legal authority, be it statutory, judge-made, or administrative, almost always comes in a set of elements. Teach your students to let those elements outline their answer. Teach your students to incorporate those elements to frame their written work product. The ordering of the elements need not always follow statutory order (or the order in which they appear in the case[s] on point); good legal writers lead with their fists (i.e., address their strongest points first), not with their chins, but the elements should always appear in the question and the answer.

When I taught legal writing (I'm now a law librarian), my students found this format useful for phrasing the Question Presented: "Under . . . does . . . when." As in: "Under the Digital Millenium Copyright Act (DMCA), does an Internet Service Provider (ISP) have a duty to report the Internet Protocol (IP) address of an individual when that person has uploaded copyright-protected material to a social networking profile in order to draw traffic to his own commercial venture featured on that that profile?"

Is this a clunky sentence? You betcha. Is it also a clear statement of the issue at hand? Well, it's clearer than the DMCA is, and striving to be clearer than the authority you're writing about is always a good goal. Does it include the elements of DMCA liability? NOPE! (That belongs in the Brief Answer, which should begin with the word "Yes" or "No," and be followed by something like "The DMCA imposes (or doesn't impose, depending on your analysis) liability on an ISP for infringing users when . . . " and then you recite the elements of liability.

After this: apply the elements to the fact pattern. On preview: pay attention to footnote's mantra: IRAC, IRAC, IRAC. It's ubiquitous for a reason. Application (or analysis, the "A" of IRAC, is almost always where legal writing students lose the ball.

Which gets me to my final point: rewrite, rewrite, rewrite. I had my students run through at least three different drafts of the same memo before I would grade it. You should have your students do the same. Legal writing should NOT be 'interesting,' save to those folks who practice law in the area that's being written about. Legal writing should be persuasive. Let your students know that, in the real world, written legal work product is often collaborative; for this reason, encourage your students to work alone, as this may be the only time they get to hone their skills by themselves.
posted by deejay jaydee at 9:07 AM on August 2 [2 favorites]

Really excellent responses - and yes, somewhat surprised at the number of legal writing geeks out here :). Thanks, all!
posted by jagalt at 10:23 AM on August 2

The same goes for writing clearly; stress how court clerks will start to blow through your briefs if you write poorly.

Other commenters have given great advice, but the above comment bears repeating. When I clerked for a judge, it was surprising to me how many lawyers --- otherwise excellent, successful lawyers --- were abysmally bad writers. I really wish I had kept a couple of those briefs just as examples, because people do not believe me when I talk about how bad the writing can be.
posted by jayder at 10:40 AM on August 2

The chief curse of legal writing is that it's just bloody bad AS WRITING.

I don't disagree, but far more important IMO is that legal writing should be easy to read. I mean, easy for other lawyers.

I don't care about the first, but the second is totally critical for me. So what if it is bad as writing in general. It must be very, very, very clear to the point of being boring. There must be no doubt as to what you mean.

When I clerked for a judge, it was surprising to me how many lawyers --- otherwise excellent, successful lawyers --- were abysmally bad writers

You are absoulutely right. I believe you.
posted by Ironmouth at 9:21 AM on August 4

Legal authority, be it statutory, judge-made, or administrative, almost always comes in a set of elements. Teach your students to let those elements outline their answer.

Why do they never start with the statute? I've seem so many motions and briefs where they don't start from first principles and look at the statute that controls. Sometimes I go up against guys I've seen on fox news or big time partners and I'm just amazed that they don't go to the heart of the matter--the statute or case which provides the plaintiff with the ability to request relief. You must start there.
posted by Ironmouth at 9:24 AM on August 4

Jayder and ironmouth both have hit some important points.

As a finer point, I agree completely with showing the students well-written BRIEFS, rather than well-written opinions. They've read so many opinions after the first week that their minds will be drifting towards muddled language.
posted by craven_morhead at 9:59 AM on August 4

One other thing: I recommend showing in class or at least linking to Bryan Garner's interviews with judges and writers. Garner is one of the great authorities on teaching legal writing and he interviews Supreme Court justices, state and federal judges, lawyers, and authors on writing and legal writing.
posted by jedicus at 11:40 AM on August 4

Bryan Garner has a bit of a cult following at my firm.
posted by craven_morhead at 12:24 PM on August 4