Legal Education Digest
Moving Beyond Product to Process: Building a Better LRW Program
E Margolis & S L DeJarnatt
(2006) 14(Spec Ed) Legal Education Digest 16
46 SC L Rev, 2005, pp 93–136
Over the last twenty years, most law schools have developed formal legal research and writing programs (‘LRW’), and there has been a gradual shift towards the use of professional writing teachers in these programs. This article offers solutions to some of the challenges that have constrained the growth of legal writing, problems that perennially arise in LRW pedagogy that our improved status allows us to address. Part II of this article reviews the recent history and progress of LRW as a discipline. In Part III, we will review the Temple University School of Law LRW program in detail to demonstrate how we have resolved many of these issues. In Part IV, we will highlight those aspects of our program that are different from many other LRW programs and suggest why our methods resolve certain pedagogical dilemmas and are consistent with current theories on teaching writing and helping students enter the discourse community of lawyers.
The structure and content of many legal writing programs were developed when programs were staffed primarily by teachers with low status, low pay, greater teaching responsibilities, and little or no support for scholarship. In the past two decades or so, LRW has undergone a pedagogical revolution that has shifted our emphasis from the product of writing to the process of writing. Influenced by composition and rhetoric theory, LRW scholars began to advocate for a focus on the process of analysis and writing, instead of limiting their role to merely correcting errors. LRW became a course about legal analysis — how to critically analyse legal problems and, most importantly, how to convey the analysis to others in writing, as lawyers are called upon to do in their work.
On the surface, the structure of Temple’s program seems familiar, but a closer look will reveal that it differs greatly from the traditional writing program in several ways. In Temple’s program, students fully research and write each assignment in a real-world practice context. All of the assignments require analysis of statutes and cases and research in primary and secondary sources. The fall semester introduces students to basic legal research and analysis in the context of predictive writing. Temple students start the first-year LRW course even before they arrive at law school. Over the summer, they are sent excerpts from their research and writing texts. When they arrive at school, they begin LRW during orientation week.
The first assignment is distributed the first week. The assignment requires the students to research and write a memorandum of law addressing the client’s problem. The primary goal of the assignment is to introduce students to library research, but we also intend the assignment to teach analytical skills, such as the simple application of rules to facts or drawing an analogy between precedent and new facts. Through the process of analysing the client’s situation and developing a research plan, the professor instructs the students in the techniques of legal research. For this first assignment, students are required to use print sources for their research. After the students turn in the memoranda, the professor provides detailed written feedback on each individual memorandum and meets with each student to discuss the comments.
For the second assignment, the students revise the first memorandum and expand it to cover an additional issue requiring further research. Class during this time focuses on the research and analysis of the new issue. Once this assignment is submitted, the professor provides detailed written feedback on both the revised initial assignment and the additional analysis.
The most complex problem is presented both as the fall semester’s final memorandum assignment and as the spring semester’s appellate brief assignment. The final memorandum assignment is intentionally vague and requires more complex analysis and a more complex organisational structure. The fall semester grade is based entirely on the final draft of the final memorandum, much as grades for other classes are based on the final examination.
The spring semester focuses on advocacy, building on the objective analysis and writing skills the students developed in the fall. The final problem from the fall is developed into an appellate record, and students represent the other side, writing an appellate brief and making an oral argument before a panel of judges. As in the fall, the grade is based on the final draft of the appellate brief.
While it is difficult to measure success in concrete terms, we believe the Temple LRW program is highly successful. Course evaluations consistently show students enjoy the course and recognise that the rigorous approach pays off.
While the broad strokes of the Temple LRW program are similar to traditional legal writing programs, there are some important ways in which we have moved away from some of the typical pedagogical choices developed under less than ideal circumstances. The most significant of these is the full integration of all aspects of research and writing. The early, intensive orientation week classes are another unique feature of our program. All of these important aspects of the Temple LRW program are soundly supported by learning and composition theory.
The most crucial element of Temple’s program is the full integration of research and writing. Seeing the interrelationship between analysis, research, and writing is essential to a real understanding of legal discourse. First, the process of legal analysis is a process of making law and constructing meaning. Second, the discourse of law does not segregate research and writing. In the Temple LRW Program, students never need to make the leap from isolated skill to real-world application because they learn in a real-world context from the very start. At Temple, all research is taught through the vehicle of an open memorandum assignment. The full integration of research and writing allows students to engage in the ‘active experimentation’ necessary for adult learners to master fully the material. The Temple LRW course is based on the assumption that the students will make mistakes, try again, and eventually get it right. The improvement and rate of progress we observe over the course of the semester are remarkable.
Another key aspect of the Temple LRW Program is that all discussion of research and writing technique is done through the vehicle of the assignment on which the students are currently working. It is well established that writing is most effectively taught if the professor focuses on the student’s writing process, rather than teaching the document itself. Legal writing scholars have increasingly recognised the benefits of following the process model of teaching writing. Temple’s LRW program follows the process model by engaging in the process with the students, rather than educating them about the process and expecting them to do it on their own. At Temple, we believe that you cannot give away too much and that the benefits of cooperative and collaborative learning far outweigh the risk that students will not do their own work.
The Temple LRW program uses both cooperative and collaborative techniques for engaging students in the assignments. The cooperative relationship between professor and student continues outside the classroom. Temple’s program design requires professors to provide individual feedback to students at numerous points in the writing process. Because the Temple program is built around the idea that students learn by doing and that they will make many mistakes along the way, we grade only the final product in each semester. The most common objection to ungraded course work is that students will not take the course as a whole seriously and that students will not take the individual ungraded assignments seriously. While these may be valid concerns when the entire course is pass/fail, delayed grading does not create the same problem at Temple. We are careful to point out to the students that if they do not invest time and effort on the ungraded assignments, they are not likely to do well on the graded one. Finally, early grading may play a role in the adverse views many students hold of LRW courses. While students may have some of the same negative reactions to feedback without a grade, overall, our delayed grading system makes LRW more similar to other first-year courses and more likely to be perceived similarly.
The distinctive elements of the Temple program that we have discussed so far primarily work to benefit the students’ learning. Two aspects of the Temple program, reuse of assignments and small class size, do make our professional lives easier even while they improve the quality of the student experience. Recycling helps the professor improve because the process of refining a previously used assignment forces the professor to reflect on the earlier experience with the problem. Students will write better papers each time we reuse an assignment because our deepening expertise allows us to teach it better. The oft-repeated reason for not reusing assignments is the fear that students will cheat if assignments are reused. Although fear of cheating is legitimate, it should not be dispositive. First, remember that even with new assignments, cheating can occur. The best ways to remove the temptation to cheat are to require evidence of research, including narrative reports about the student’s research efforts and copies of finding aids, and prewriting activities, including outlines and partial drafts. A final, easy curb on cheating is tweaking the details of the problem. The more changed details the student has to identify and revise, the less incentive she has to use someone else’s work.
The other element of the Temple LRW program that makes it so effective for students and so rewarding for teachers is the small class size.
We do not claim to have solved every challenge facing LRW professors. But we hope this article helps advance the discussion of how LRW can and should be taught, a discussion that should be grounded in our understanding of how adult students learn and how law students can be brought into full membership in the discourse community of law.