Teaching in Practice: Legal Writing Faculty as Expert Writing Consultants to Law Firms - E. Joan Blum and Kathleen Elliott Vinson

• Citation: Vol. 60 No. 2
• Publication year: 2009

Teaching in Practice: Legal

Writing Faculty as Expert Writing

Consultants to Law Firmsby E. Joan Blum^*and Kathleen Elliott Vinson^**

Abstract

As experts in the pedagogy and substance of legal writing, full-time legal writing faculty who serve as writing consultants to law firms help fill an increasing need for training and support of lawyers. In addition to providing a direct benefit to lawyers and their firms, this practice benefits the legal academy by providing fresh ideas for teaching and scholarship. This Article discusses generally the practice of legal writing consulting in law firms by full-time legal writing faculty. The Article provides background in theory and practice, addressing why law firms seek outside consultants for this type of training and support, and why full-time legal writing faculty are appropriate writing consultants. For this, the Article draws on, among other sources, the recently published Educating Lawyers¹ and Best Practices for Legal Education? The

Article then describes the "nuts and bolts" of a consulting practice, including various ways services might be configured, and asks whether realistic goals can be set and met. Finally, the Article addresses ethical and other challenging issues that may arise in this type of consulting practice.

Introduction³

Law firms increasingly call on full-time law school legal writing faculty to serve as outside consultants to help associates improve their legal writing.⁴ This practice recognizes that a legal writer's development does not end with law school graduation,⁵ that economic pressures of law practice may curtail intensive ongoing mentoring of associates by more senior lawyers within a firm,⁶ and that the expertise of full-time legal writing faculty can be tapped for significant benefit to individual lawyers and to the firm as a whole.⁷ Consulting can also enrich the professional development of legal writing faculty and make them better teachers and scholars.⁸

Full-time legal writing faculty are particularly well-prepared to serve as writing teachers or coaches within law firms because they dedicate their careers to understanding the theory as well as teaching the practice of effective legal writing.⁹ Moreover, the pedagogy of legal writing, based largely on modeling and coaching, translates effectively from the academic to the practice setting.¹⁰ Thus, legal writing faculty bring to the law firm a combination of thoughtfulness about legal writing and teaching expertise that would be difficult to replicate elsewhere.

In addition to providing value to associates and law firms, this type of consulting can contribute substantially to the professional development and satisfaction of legal writing faculty. Especially for mid-career or late-career legal writing faculty, teaching in the practice setting can provide an important real world connection to keep them current on developments and trends in writing in law practice as well as provide new ideas to infuse their teaching and scholarship. This ongoing connection to the world of practice may enable legal writing faculty to speak more authoritatively to students about similarities and differences between writing in law school and in practice. Other benefits to legal writing faculty include financial compensation, which can be important for members of a profession who are generally underpaid,¹¹ and the positive recognition that expertise in teaching in practice can bring to the faculty member, the legal writing program, and the law school.

But there are potential negatives as well. It can be difficult to balance the demands of even a small consulting practice with those of a full-time teaching position. It can also be difficult to give the legal employer what it wants—generally a "quick fix"—when legal writing faculty know from experience that for most writers improvement requires significant time and effort over the long term.¹² The problem of potentially unrealistic expectations on the part of the employer is very real. Law firms call in consultants, in part, because outsourcing the task of transforming a deficient writer into a competent one generally requires less investment of time, energy, and money on the part of the employer than intensive ongoing mentoring by supervising lawyers¹³ or hiring a writing specialist to work in-house. Given unlimited time and money, most legal writing faculty could probably help most associates improve their writing substantially. But consultants operate under constraints, including the time and money the law firm is willing to devote to improving associates' writing, the time and energy the associates themselves are willing or able to devote to improving their writing, and the principal demand on the consultant's time: teaching law students.

Moreover, the constraints of the consulting engagement, even when the consultant is coaching one-on-one and both the associate and the firm cooperate fully, may present obstacles to giving meaningful help to an associate whose writing problems stem from problems in analysis or simply from lack of experience in the particular context in which the associate has been called upon to write.¹⁴ A lack of cultural fit with the firm or even a failure to write in the preferred style of the supervisor may result in an associate being labeled as having a "writing prob-lem."¹⁵ Lack of success by the consultant in solving the "writing problem"—whether real or perceived—presents a risk to the reputation of the teacher as well as to that of the law school.

This Article discusses generally the practice of legal writing consulting in law firms by full-time legal writing faculty,¹⁶ including whether realistic goals for teaching in the practice setting, as opposed to in law school, can be set and met. Part I of the Article provides background on why there is a role for legal writing faculty to apply their expertise by serving as writing consultants in law firms. Part II describes the nuts and bolts of a consulting practice, including various ways consulting services might be configured. Part III proposes ways to identify realistic goals for effective legal writing consulting and to devise methods for achieving those goals. Part IV addresses ethical and other challenging issues that may arise in this type of consulting practice.

I. Background

Changes in the structure of law firm practice over the past several decades have made the informal apprenticeship model,¹⁷ under which new lawyers gained professional competence by working closely on client matters with more experienced lawyers in the firm,¹⁸ almost obsolete.¹⁹ Today, a senior lawyer in a private law firm is less likely to work closely with an associate to draft and redraft a piece of writing for a number of reasons. Although successive redrafts of a document in light of feedback from a supervisor would improve the product as well as contribute to the associate's development as a legal writer, short-term efficiency—for example, meeting a client's need for turnaround—may require that the supervisor take the project away from the associate. Also, given increased competition among law firms and the high cost of legal services of large private firms, deriving in part from high compensation levels of lawyers, law firms may find it difficult to justify to a client charging for time that includes training.

In light of these and other pressures militating against apprenticeship-type training, a law firm may expect new hires to graduate from law school already proficient in many law practice skills, including the skills involved in producing specific types of legal writing that an associate will be called upon to produce in practice.²⁰ Although law schools in general have increasingly incorporated practice skills into their curricula,²¹ an expectation that a new law school graduate will be ready to practice law "right out of the box" is unrealistic.²² Indeed, preparation for practice is part of the mission of most if not all law schools, but law school faculties and law firms may differ widely on the appropriate nature and extent of that preparation.²³ Although some large firms conduct "boot camps" to introduce certain practice skills to new associates,²⁴ law firms may be reluctant to invest significant time of senior lawyers that would otherwise be profitable in providing ongoing intensive training in writing.²⁵ In light of all these circumstances, it is appropriate for law firms to shift some of the burden of teaching, training, and support of certain skills to outside experts.²⁶

In the area of legal writing skills, full-time legal writing faculty, who are experts in legal writing and its pedagogy, are logical choices to meet this need.²⁷ Not only does the writing process as taught in most legal writing courses "simulate[] real legal production quite closely,"²⁸ but legal writing faculty are experts in pedagogy suitable for teaching practitioners—a pedagogy of modeling and coaching.²⁹

In law school, students learn legal writing by doing, through teaching methods that simulate the way professionals acquire competence in practice.³⁰ While varying in structure and coverage, across the board legal writing courses require students to apply skills demonstrated in the classroom or through samples³¹ in successive writing assignments on which students receive feedback from the teacher, a more experienced legal writer.³² This experiential learning process, which affords the student multiple opportunities to practice a skill under the supervision of a more experienced practitioner of that skill, has obvious points of similarity with the informal apprenticeship process through which practicing lawyers traditionally learned their craft.³³ In addition, most legal writing teachers have expertise in one-on-one teaching through conferences with students on their papers, a teaching method that again promotes development of professional skills in a manner very similar to an informal apprenticeship.³⁴...