A Proposal to the ABA: Integrating Legal Writing and Experiential Learning into a Required Six-Semester Curriculum that Trains Students in Core Competencies, 'Soft' Skills, and Real-World Judgement

• Author: Adam Lamparello - Charles E. MacLean
• Position: Adam Lamparello and Charles E. MacLean is are Assistant Professors of Law at Indiana Tech Law School in Fort Wayne, Indiana.
• Pages: 59-111

A PROPOSAL TO THE ABA: INTEGRATING LEGAL

WRITING AND EXPERIENTIAL LEARNING INTO A

REQUIRED SIX-SEMESTER CURRICULUM THAT TRAINS

STUDENTS IN CORE COMPETENCIES, ‘SOFT’ SKILLS,

AND REAL-WORLD JUDGMENT

ADAM LAMPAREL LO AND CHARLES E. MACLEAN*

“The biggest failure at most law schools is the dearth of seriously

good skills courses, especially training in legal writing.”1

I. ABSTRACT

Experiential learning is not the answer to the problems facing legal

education. Simulations, externships, and clinics are vital aspects of a real-

world legal education, but they cannot produce competent graduates alone.

The better approach is to create a required, six-semester experiential legal

writing curriculum where students draft and re-draft the most common

litigation documents and engage in simulations, including client

interviews, mediations, depositions, settlement negotiations, and oral

arguments in the order that they would in actual practice. In so doing, law

schools can provide the time and context within which students can truly

learn to think like lawyers, do what lawyers do, and exercise real-world

judgment. Simply put, merging experiential learning into the legal writing

curriculum is the path to producing competent graduates and a legal

education that maintains relevance in a changing world.

In this article, we set forth a proposal to the American Bar Association

advocating for a three-year experiential legal writing curriculum that

requires students to take one legal writing course during each semester of

law school and directs law schools to devote between eight and fifteen

credits to experiential legal writing instruction.2 We also include a

comprehensive, six-semester curriculum that incorporates doctrinal, skills,

and clinical courses.3

Copyright © 2015, Adam Lamparello and Charles E. MacLean.

* Adam Lamparello and Charles E. MacLean is are Assistant Professors of Law at

Indiana Tech Law School in Fort Wayne, Indiana.

1 Bryan A. Garner, Three Years in Law School, Spent Better, N.Y. TIMES (July 21,

2011), http://www.nytimes.com/roomfordebate/2011/07/21/the-case-against-law-school/

three-years -in-law-school-spent-better.

2 See infra Part III.A.

3 See infra Part IV.A.

60 CAPITAL UNIVERSITY LAW REVIEW [43:59

The Clinical Legal Association recently lobbied the ABA for a

mandatory fifteen-credit experiential learning requirement.4 The ABA

approved only six.5 It is time for the Legal Writing Institute to make its

own proposal and give law students the education that members of the

bench and bar demand.

II. INTRODUCTION

The problem with experiential learning, and current reforms to legal

education, can be summarized in the following passage: “If students

successfully learn the analytical skills that are traditionally the heart of the

first-year curriculum—case analysis, generating broad and narrow case

holdings, rudimentary policy analysis, and statutory interpretation—as well

as basic legal doctrine, they are typically ready to begin client

representation . . . .”6 That is wrong. Dead wrong.

If law students cannot write effectively—in a persuasive context—they

will fail as advocates, counselors, and negotiators. Indeed, persuasive

writing ability, logical reasoning skills, and sound judgment are the most

valuable lawyering skills.7 Merging experiential learning into the legal

4 See Michele Pistone, CLEA calls on ABA to require 15 credits of experiential

learning, BEST PRACTICES FOR LEGAL EDUCATION (July 1, 2103),

http://bestpracticeslegaled.albanylawblogs.org/2013/07/01/clea-calls-on-aba-to-require-15-

credits-of-experiential-learning/.

5 See Michele Pistone, ABA Standards Review Committee votes for 6 credits of

experiential learning, BEST PRACTICES FOR LEGAL EDUCATION (July 17, 2013),

http://bestpracticeslegaled.albanylawblogs.org/2013/07/17/aba-standards-review-cmte-

votes-for-6-credits-of-experiential-learning/.

6 Deborah Maranville, Infusing Passion and Context into the Traditional Law

Curriculum Through Experiential Learning, 51 LEGAL WRITING: J. LEGAL EDUC. 51, 64–65

(2001).

7 See Larry O. Natt Gantt, II, The Pedagogy of Problem Solving: Applying Cognitive

Science to Teaching Legal Problem Solving, 45 CREIGHTON L. REV. 699, 709 (2012).

Professor Gantt explains as follows:

[T]he heart of legal problem solving skills[] [is] the analytical and

critical thinking skills that make up the cognitive components of

thinking like a lawyer. Such cognitive components include linear

thinking, searching for coherence, crafting arguments, attending to

detail, assessing relevance, perceiving ambiguity, dissecting thought,

seeing others’ perspectives, and logical thinking.

Id.

2015] A PROPOSAL TO THE ABA 61

writing curriculum can create a cohesive program where these skills are

taught in a real-world context.

Members of the bench and bar are not clamoring for more experiential

learning in law school.8 They are criticizing the poor quality of graduates’

writing skills.9 A recent article in the American Bar Association’s online

journal states as follows: “Ask judges and senior lawyers to identify the

most disturbing aspect about younger lawyers, and they will reply in one

voice, ‘They can’t write.’”10

New York Circuit Judge and Columbia Law Professor Gerald Lebovits

states as follows: “To teach students their vocation, law schools must now,

more than ever, augment their writing curriculum. Doing so will be

expensive. Not doing so will be even more expensive.”11 The legal

profession “depends on flawless writing, logical reasoning, and persuasive

argumentation.”12

As Professor Bryan Garner explains, “the biggest failure at most law

schools is the dearth of seriously good skills courses, especially training in

legal writing.”13 Law students “are not mastering essential skills,”14

which has forced law firms to implement formal training programs15 and

led to clients refusing to pay for the time billed by first and second year

associates.16

Professor Bryan Garner advocates for the following solution:

8 Sharon D. Nelson & John W. Simek, Why Can’t Law School Graduates Write?, 38

LAW PRACTICE 22, 24 (2012).

9 Id. at 24.

10 Id. See also Kristen K. Robbins, The Inside Scoop: What Federal Judges Really

Think About the Way Lawyers Write, 8 LEGAL WRITING: J. LEG AL WRITING INST. 257, 275–

84 (2002).

11 Gerald Lebovits, Legal Writing in the Practice-Ready Law School, N.Y. ST. B.J.

Sept. 2013, at 67 (quoting James Etienne Viator, Legal Education’s Perfect Storm: Law

Students’ Poor Writing and Legal Analysis Collide with Dismal Employment Prospects,

Creating the Urgent Need to Reconfigure the First-Year Curriculum, 61 CATH. U. L. REV.

735, 756 (2012)).

12 Id. (internal quotation marks omitted).

13 Garner, supra note 1 (emphasis added).

14 Id.

15 See David Segal, What They Don’t Teach Law Students: Lawyering, N.Y. TIMES

(Nov. 19, 2011), http://www.nytimes.com/2011/11/20/business/after-law-school-associates-

learn-to-be-lawyers.html?pagewanted=all&_r=0.

16 Id. See also Catherine Ho, Group pushes for practical training for law students,

WASH. POST (July 14, 2013), http://articles.washingtonpost.com/2013-07-14/business/40

575393_1_law-schools-barry-currier-law-placement.