Analyze This: Using Taxonomies to "scaffold" Students' Legal Thinking and Writing Skills - Christine M. Venter

• Citation: Vol. 57 No. 2
• Publication year: 2006

Legal Writing

Analyze This: Using Taxonomies to "Scaffold" Students' Legal Thinking and Writing Skillsby Christine M. Venter^*

I. Introduction

As lawyers, we pride ourselves on our analytical skills, structured thought process, and insights that derive from close reading of texts. Yet, how much actual class time do legal writing faculty and faculty teaching doctrinal subjects spend deliberately and constructively imparting these same skills to their students? The initial reaction to this question might be to dismiss it, as many legal writing faculty are convinced that they spend at least an adequate amount of time discussing and fostering the analytical process. A closer examination of one's actual classroom practice might reveal a different story. For example, a professor who taught a writing intensive class at a large public midwestern university claimed to talk to her students about analysis and writing "all the time," but actually spent very little time (less than ten percent of each class) explicitly teaching her students the thinking and writing skills necessary to the discipline.¹ Moreover, in another writing study conducted at a private university, some teachers had difficulty responding to questions about what kinds of thinking and analytical skills their writing assignments and courses in general were designed to inculcate in their students.² Why this disconnect?

Many legal writing teachers speak glibly about training their students to think like lawyers, but have not necessarily tailored their pedagogy to meet that goal. If teachers are not clear and explicit in how they go about teaching students analytical skills, they cannot necessarily expect students to become experts in analysis. While it is true that over the course of their law school careers, most students will develop legal analytical skills through exposure to the law and by means of the Socratic method; teachers can do better. Lawyers pride themselves on precision. This Article argues that legal writing faculty should take a more direct approach to thinking, by fostering students' metacognition skills. Teachers need to develop precise and overt strategies, based on taxonomies, to teach students analytical skills and enable them to master the skills of thinking and writing like lawyers.

II. The Current Paradigm and Legal Writing "Like A Lawyer"

Since the findings of the MacCrate Report,³ the prevailing wisdom has been that analysis is a primary skill that students must acquire, and law schools must teach.⁴ As Christopher Rideout and Jill Ramsfield have noted, "[A] critical function of law school is to teach legal analysis and argument. . . ."⁵ Yet, precisely how legal writing teachers are to teach analysis and precisely how students learn to "do" analysis, remains somewhat mysterious, both to faculty and, more importantly, to students themselves.

Legal writing seems to provide a prime opportunity for students to develop the skill of analysis—thinking and writing like a lawyer. The opportunity to read and write in the discipline, to be specific about methodology, to craft goal-oriented assignments,⁶ to practice new pedagogies,⁷ to reach all students because of smaller class sizes and conferencing, to allow students to work through the "process" rather than focusing on the product⁸ —in short, to put into practice the new legal rhetoric⁹ —all these possibilities are open in legal writing. Moreover, legal writing teachers can share their findings with others in the field by publishing in journals dedicated to legal writing issues.¹⁰ Yet, legal writing faculty have struggled to reach a consensus on how best to teach analysis, or even if they should teach it explicitly at all.¹¹ If questioned about how they teach analysis, many legal writing faculty might respond that they teach it using "CREAC" (Conclusion, Rule, Explanation, Application, and Conclusion), "CRAC" (Conclusion, Rule, Application, and Conclusion), "IRAC" (Issue, Rule, Application, and Conclusion), or any one of the acronyms used to describe the organizational formula that legal writing faculty instruct students to follow when writing office memoranda. This process involves extrapolating rules from cases and applying them to the facts of the case at hand. While these approaches have proven to be extremely helpful in providing students with a way in which to structure their writing and analytical process, they become too formulaic and too limited to allow for analytical skills to fully develop. CREAC does not explain to students how to do analysis, it merely provides an organizational formula for writing up that analysis.

Formulas like CREAC, while useful, often ultimately prove to be too reductionist to be entirely useful in teaching students the skill or art of analysis. CREAC tends to encourage formalism, rather than creative thinking. This tendency is evidenced by the fact that many students who struggle to cultivate their legal writing skills bemoan the fact that legal writing does not allow for creativity. These students fail to see that CREAC is merely a tool for writing up their analysis and response to problems, and that they can be creative in their responses to those problems and in the arguments they make.¹²

As Kevin Smith has noted, "Most students ... do not participate in a systemic and in-depth study of each method's operation, potential uses, and conceptual bases."¹³ Because most students see CREAC and its ilk as a formula they can plug in to write a memo, they fail to see the big picture of what is required for sound, lawyerly analysis. Students then fail to understand that "legal reasoning is a dynamic, iterative process which must be adapted to the needs of a particular legal problem."¹⁴ They also fail to understand that "legal reasoning involves the structured manipulation and utilization of information, not the information itself."¹⁵

In the rush to professionalize the discipline of legal writing and show skeptics that there is a "content" to the subject and that writing can be taught, perhaps the pendulum has swung too far in favor of "content driven learning."¹⁶ Perhaps, in focusing on content like CREAC and Bluebook citations, legal writing faculty have neglected legal analysis and thinking. The faculty may have inadvertently become "content-centered teachers [who] believe that merely providing exposure to the ideas of the discipline will cause students' thinking to evolve naturally over time."¹⁷ Some legal writing faculty may even believe that "the capacity to think is innate and that, therefore, spending valuable class time promoting changes in thinking seems unnecessary or even misguided."¹⁸ Legal writing faculty need to turn away from this "banking" approach to education¹⁹ and return to a more instrumental view of teaching thinking and writing. Faculty need to explicitly teach students thinking strategies and make the students conscious of their cognitive processes. Faculty also need to continue to explore how their students' thought processes shape their students' writing and vice versa.²⁰

Legal writing teachers need to move to a more explicit methodology when teaching analysis; a methodology that goes beyond providing students with models of effective analysis, such as CREAC. Providing samples of "effective" or "good analysis,"²¹ while useful in some instances, does not necessarily encourage students to see the big picture. Analysis is a particular way of thinking about problems, drawing information from various sources, analogizing fact patterns, extrapolating rules, synthesizing and strategizing, and making predictions, no matter what the circumstances. Providing students with samples encourages them to see problems as discrete, and content or information specific.

Further, legal writing teachers need to continue to think about the relationship between the way their students think and the way their students write. The assumption is that if one teaches writing effectively, using all the new and developing pedagogies, one must be teaching analysis effectively.²² In making this assumption, teachers have apparently neglected to fully probe the relationship between writing and thinking. Teachers know that writing and thinking are interrelated, and that "[w]hen our students write memos and briefs, they are doing more than just telling us what they know. They are also learning how to think like lawyers."²³ It would behoove teachers to probe the relationship between writing and thinking (analysis) so that teachers can more effectively teach their students the analytical skills required for the effective practice of law. Currently, legal writing teachers have not resolved the issue of the best way to teach their students and have them manifest in their writing the skill of "thinking like a lawyer."

III. What Does "Thinking Like a Lawyer" Mean?

Thinking like a lawyer is one of those axioms, so readily tossed around, that the precise meaning is not always clear. Whatever its content, it is clearly an art that students come to law school with the expectation of learning. Students "go to a great school not so much for knowledge as for arts or habits . . . ."²⁴ The art of thinking in a peculiarly legal way is a skill essential to successfully entering the discourse of law. Robert Keeton described the art of thinking like a lawyer as "a general skill of understanding—one that is essential to develop in some minimum degree before any bridges can be crossed between knowing law and using it in addressing a problem."²⁵

To determine what is meant by "thinking like a lawyer," one must first consider what it is that lawyers do. In other words, to provide the phrase with content, one must look at the context. Students must understand the conventions and practices of the law and how these are used by lawyers in a variety of contexts before the students can claim to be able to think like lawyers. While true expertise in thinking like a lawyer can come only through...