Writing in Law Schools

• Publication year: 2021

76 Nebraska L. Rev. 561. Writing in Law Schools

561

Carol McCrehan Parker*

Writing Throughout the Curriculum: Why Law Schools Need It and How to Achieve It

TABLE OF CONTENTS

I. Introduction 562

II. Writing as a Tool for Analyzing and

Applying Legal Authorities 568

A. Using Writing to Diagnose

Thinking Problems 570

B. Using Writing to Promote Clear Thinking 572

C. Using Writing-to-Learn Activities to

Complement Traditional Teaching Methods 575

III. Writing Skills as "Tools of the Trade" 580

A. Acquainting Students with Functions

and Forms of Professional Documents 580

1. Introducing Purposes and Audiences

for Legal Writing 581

2. Providing Models of Effective

Legal Writing 583

B. Teaching Students to Produce

Professional-Quality Documents 584

IV. Writing as a Tool for Constructing

Meaning 589

A. Using Writing to Examine the Process of

Interpreting Law and Fact 590

B. Teaching Writing as an Interpretive

Process 592

1. Telling the Client's Story 592

a. In a First-Year Legal Writing Class 595

b. Throughout the Curriculum 597

2. Finding One's Own Voice 597

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C. Using Writing to Encourage Self-Awareness

and to Develop Professional Integrity 599

V. Conclusion: What Is the "Ideal" Law

School Writing Program? 601

I. INTRODUCTION

"The skills and values of the competent lawyer are developed along a continuum that starts before law school, reaches its most formative and intensive stage during the law school experience, and continues throughout a lawyer's professional career."(fn1)

Words are the tools of a lawyer's trade.(fn2) To read, write, and appreciate the power of words in the profession is a central educational goal of law school. Producing effective legal writing draws upon all aspects of a legal education, and the development of communicative skills is inseparable from the development of analytic skills. Writing throughout the law school curriculum helps students learn to use writing as a means of creating their own understanding of the law and introduces them to the community of legal discourse that frames this understanding.

To help students gain competence in written communication skills and to provide a basis for graduates to continue to develop these skills throughout their professional careers, a law school writing program should not be envisioned simply in terms of its first-year legal writing course, but rather as including all opportunities to use writing to promote professional competence throughout all three years of law school. Accordingly, in this Article, the phrase "law school writing program" refers not only to those courses in which primary emphasis is on written communication, but also to seminars, clinical courses, and doctrinal courses-in short, to all of the writing experiences offered to students throughout the law school curriculum.

Although the proposition that written communication skills are part of a cluster of professional skills in which a lawyer must be competent may seem obvious, and although a consensus has emerged that analysis and communication are interrelated, within too many law schools the notion has persisted that writing is a discrete skill to be taught only in "legal writing" classes in the first year of law school. In fact, until recently the American Bar Association standards for law school accreditation reflected that view: the only standard relating to

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legal writing provided simply that law schools should require "one rigorous writing experience"(fn3) during law school. Neither a single "rigorous writing experience" nor a first-year legal writing class is sufficient to provide basic competence in written communication.(fn4)

On August 6, 1996, the American Bar Association amended its standards for law school accreditation(fn5) to include the following language: "The law school shall offer to all of its students . . . an educational program designed to provide that its graduates possess basic competence in legal analysis and reasoning, oral communication, legal research, problem-solving and written communication."(fn6) The new standard recognizes that competence in written communication is an integral component of the repertoire of professional skills in which lawyers should be competent; it mandates that law schools design programs that will enable students to develop the basic competencies that are a lawyer's essential tools.

The new standard codifies some of the recommendations made in an American Bar Association task force report popularly known as the MacCrate Report.(fn7) The MacCrate Report characterizes the relation

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ship of legal education and professional development as "an educational continuum" and emphasizes the essential role that skills courses play in facilitating the development of professional skills and values while students are in law school and throughout their professional careers.(fn8) Both the MacCrate Report and a companion study undertaken by the American Bar Foundation(fn9) identify skills in written and oral communication as fundamental to the successful practice of law.(fn10) In response to the challenge presented by the MacCrate Report, many law schools have considered ways to improve their effectiveness in teaching legal writing and in helping students develop rhetorical skills.(fn11) The recent amendment to the accreditation standards should provide added impetus to these efforts at curricular reform.

The new standard reflects understanding that competence in legal writing requires more than technical proficiency in standard written English and familiarity with standard forms of professional legal writ

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ing. Development of legal writing skills is inseparable from development of the other skills recognized as essential in the recodified standards of accreditation for law schools: "legal analysis and reasoning, oral communication, legal research, [and] problem-solving."(fn12)

Accordingly, every law school course can teach students ways to use writing to help them analyze legal authorities and organize analysis, can expose students to various kinds of professional documents, and can encourage students to use writing to explore the nuances of law and fact and reflect on the social policies underlying legal issues. This education thereby socializes students into the discourse community of lawyers. In addition, opportunities exist throughout the law school curriculum to use writing to help students understand the creative and critical processes by which they generate and refine analysis of legal problems.

Decisions concerning law school writing curricula should be informed by the scholarship in composition theory that has contributed to the growth of legal writing programs over the past twenty years. Three theoretical approaches have been particularly influential: instrumental, process, and social context theories.(fn13) A comprehensive law school writing program should draw upon all of these theories; no single theory is sufficient.(fn14) Their lessons are valuable to all faculty involved in teaching writing throughout the law school curriculum.

The first of these theories, the instrumental approach, regards writing as simply the instrument by which the writer's thoughts are presented. The goal is a transparent document that conforms to conventions of format and style.(fn15) The values central to this theory, clarity and conformity to rules, are essential to effective communication in legal documents and to the credibility of their authors. The aspects of

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writing emphasized under this theory probably approximate most closely what a layperson means when she refers to writing.

By contrast, the process approach, which gained prominence following the 1982 publication of Maxine Hairston's article, The Winds of Change: Thomas Kuhn and the Revolution in the Teaching of Writing,(fn16) focuses primarily not on the document itself but rather on the process by which it is created: the act of writing serves not only to communicate the writer's knowledge but also to generate that knowledge.(fn17) Under this view,

knowledge is the product of an interaction between the writer, reader, subject, and text. Knowledge does not exist except within linguistic forms that both construct and constrain it. Every act of writing, then, is an act of construction, and the task of the writer is not only to find the right words to describe the subject, as in the [instrumental] perspective, but also to use language in such a way as to generate, and then to embody, meaning.(fn18)

The process approach to writing represented a paradigm shift away from the instrumental approach to composition theory.(fn19) It was embraced by legal writing teachers because it explained a phenomenon they had observed in their students: analysis and communication skills develop together in synergy. In addition, because this approach focuses on the process of producing drafts, and the recursive process of rereading and questioning the writing, it emphasizes critical reading skills.(fn20)

Finally, the social context approach is the most recent development in composition theory to influence law school writing programs. This approach seeks to "acknowledge the social contexts within which writing takes place and, thus, to acknowledge the ways in which writing generates meanings that are shaped and constrained by those contexts."(fn21) Under this approach, law students are viewed as entering a new community of discourse.(fn22) To produce effective legal writing, stu

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dents need to learn what effective legal writing is,(fn23) and they need to write in the discipline-a lot-to really understand how it functions.(fn24)

Opportunities to use these theories to help law...