Making effective use of practitioners' briefs in the law school curriculum.

• Author: Hemingway, Anna P.

1. Introduction II. The Pedagogy Supporting the Use of Practitioners' Briefs to Teach Persuasive Writing III. The Process of Using Practitioners' Briefs to Teach Persuasive Writing IV. Going Beyond the Legal Writing Classroom: Using Practitioners' Briefs to Teach Analysis in Casebook Classes V. Conclusion I. INTRODUCTION

   Many law students attend school for three years and go on to graduate, pass the bar exam, and begin practicing law without ever reading court documents produced by practicing attorneys. (2) This happens because although law schools teach students how to write many of the documents that are produced for court, rarely do professors use these documents (3) in the classroom to teach. (4) Instead, professors assign edited case opinions in text books for law students to read. (5)

   Case opinions are useful to teach students the law. They are, however, just end products, and consequently, show students only how a case concluded, not how it began or how it was argued or how it progressed through the legal system. (6) This lack of exposure to legal arguments can leave students with an incomplete understanding of the legal process.

   Providing students with practitioners' briefs filed in cases they are studying enhances students' learning by exposing them to more legal methods and practice. Although practitioners' briefs could be introduced effectively throughout most of the law school curriculum, one course that would greatly benefit from their use is Legal Writing and Research. Most practicing lawyers depend heavily on their persuasive writing skills. (7) Consequently, most legal writing professors spend a great deal of time, often an entire semester, teaching law students how to write the basic types of persuasive documents that attorneys routinely file in court. (8) Professors do not, however, traditionally ever show students actual briefs that have been used in court. (9) The use of practitioners' briefs by law students is seen as harmful for many reasons. The pedagogical reason for making such briefs taboo arises from the fear that if students refer to these documents, they may not develop the ability to think and write independently. If the brief is well-reasoned and well-crafted, students will not have the opportunity to work through an analysis of the issues independently. On the other hand, if it is not well-reasoned or well-written, reading it is likely to hinder students in their efforts to analyze the legal issues presented.

   The current state of technology, however, makes practitioners' briefs increasingly accessible to students. (10) Law school students today are quite adept at using the resources of the internet. (11) In addition, they now routinely have free access to the major electronic legal research services, Westlaw and LexisNexis. (12) Many courts nowadays also provide flee access to documents filed with them. (13) Expecting today's law students not to review practitioners' briefs when these forbidden materials are both so readily available and so obviously relevant to their assigned task, is becoming increasingly unrealistic.

   Banning their use may also be disadvantageous to students. (14) An important skill possessed by all attorneys with strong research skills is the ability to locate the information most relevant to their assigned task and to know how to make use of it. (15) Pretending that practitioners' briefs addressing the issues assigned to students for analysis do not exist, or that they are not useful, does a disservice both to law students and to their future clients. The truth is that practitioners' briefs can be very helpful in learning the practice of law and attorneys in the practice of law often refer to them. (16) Practitioners' briefs can provide an understanding of how courts view certain arguments and thus provide insight into which arguments can work and which ones will probably not. This insight can be invaluable not only in crafting the practitioners' own arguments for the court, but also in helping students understand how to draft a winning argument.

   This article argues that practitioners' briefs do have a place in the law school classroom. Part II of this article discusses the pedagogy behind using practitioners' briefs in the legal writing classroom. (17) It demonstrates how using practitioners' briefs enriches lesson plans, heightens interest in the classroom, and helps students gain a richer appreciation for lawyers' goals when they write as advocates. (18) Part III presents some different ways of using practitioners' briefs to teach persuasive writing. (19) It examines how the author has used practitioners' briefs to teach persuasive writing of the statement of facts, point headings and summary of the argument. (20) Part IV discusses ways of using practitioners' briefs in classes other than legal writing and suggests that by introducing the briefs behind the appellate opinions students read, students ultimately gain a stronger understanding of legal process. (21) Finally, the article concludes with a summary and a brief examination of potential pitfalls to avoid when using practitioners' briefs. (22)

2. THE PEDAGOGY SUPPORTING THE USE OF PRACTITIONERS' BRIEFS TO TEACH PERSUASIVE WRITING

   During their first semester of law school, students are taught how to write objectively in their legal writing courses. (23) Thereafter, students often have trouble making the shift to persuasive writing in the spring. (24) During their first semester, students are routinely taught that it does not matter who their client is; rather, they are given a set of facts presenting a legal problem and are told to determine what the most likely outcome will be. (25) After being immersed in this mindset of conducting only objective analysis throughout the fall semester, students often feel apprehensive in the spring when instructions suddenly shift and they are told to advocate for a certain position. (26)

   One way to help students make the transition from objective writing to persuasive writing is to show them actual persuasive documents that lawyers wrote for cases the students are now using to complete their assignments. Although there are a wide variety of documents to draw examples from, trial briefs and appellate briefs are most useful since these are documents students are most often required to draft in a legal writing course. (27) Using briefs that attorneys filed and courts relied on in deciding the cases students now are using to draw analogies and distinctions of in their persuasive writing assignments has several didactic advantages.

   First, by using practitioners' trial and appellate briefs, professors can make their teaching more meaningful to students. Most legal writing professors employ the teaching technique of teaching by example in their classrooms. (28) One way of teaching by example is to present the goals to accomplish and mistakes to avoid while writing persuasively. (29) In sharing goals and mistakes, many professors provide strong and weak examples of persuasive writing for students to review and critique. (30) The strong examples used are often found in the legal writing text book that students read for the course, and the weak examples are often written by the professor. (31) By using these tailor-made documents, students are only exposed to what text book authors and professors consider to be the best persuasive writing techniques. (32) They are briefs written specifically for purposes of teaching persuasive writing. (33) For example, the strong briefs will lead with the best arguments, follow a logical organizational structure, provide on point authority for all legal assertions made, and provide compelling factual analysis. (34) In other words, they provide solid examples for students to emulate. The weak briefs will not be well organized, will lack focus, and will often not include enough authority. (35) These documents serve as examples of what not to do. Although both of these custom-made briefs are important tools in professors' teaching toolboxes, legal discourse in the classroom could be further enhanced by also introducing practitioners' briefs.

   When practitioner's briefs are used along with other examples of persuasive writing, students are more likely to begin developing the ability to transfer the skills gained to new problems. (36) Through studying these examples, students should begin to develop a general skill set for writing persuasively. The briefs provide students with a deeper context for what they are asked to learn to do. This context, in turn, should help students understand the significance of what they are learning and strengthen their ability to transfer this knowledge to other projects. In using these briefs, professors need to be careful that students are not relying on them as templates. The briefs chosen need to provide students with ideas on how to best replicate the briefs' persuasive qualities and not necessarily the structure and organization presented.

   A second teaching advantage to introducing practitioners' briefs from cases students are using and writing about is that students' interest will often rise when working with material they deem to have a vested interest in. (37) Law students are busy. (38) During their first year of study, they frequently feel overwhelmed by the demands put upon them. (39) Not surprisingly, many students have little patience or interest in reading documents they perceive as not being relevant to the problem they are currently working on for a grade. (40) Although there are many advantages to exposing students to these documents, (41) nothing captures their interest like a brief written by a lawyer on a topic similar to what they need to write about for a grade. Using these briefs encourages active learning by engaging students in critical reading and the evaluation of others' work. Students learn better because of their deepened interest in the material.

   Third, using...