Tracy, J B --- "'I See and I Remember; I Do and Understand': Teaching Fundamental Structure in Legal Writing Through the Use of Samples" [2006] LegEdDig 8; (2006) 14(3) Legal Education Digest 11

‘I See and I Remember; I Do and Understand’: Teaching Fundamental Structure in Legal Writing Through the Use of Samples

J B Tracy

[2006] LegEdDig 8; (2006) 14(3) Legal Education Digest 11

21 Touro L Rev, 2005, pp 1–52

Legal educators are charged with the responsibility of engaging students intellectually in thoughtful inquiries about the role of law and lawyers and the pursuit of justice. They also are responsible for preparing each student for life as a professional lawyer who serves others. Balancing these two features of legal education is challenging; it requires creative curriculum development and teaching techniques, which incorporate intellectual discourse and the practical training of practitioners. Consequently, an essential component of legal education is the development of a law student’s ability to research legal problems, analyse legal authority and write legal documents.

Those who teach legal reasoning and writing (LR&W) explicitly introduce students to the fundamentals of these tasks. LR&W educators have approached their task by conscientiously reflecting on and re-examining what they do and how they do it, in order to design the most effective curricula and utilise the most meaningful teaching methodologies. An essential component of an LR&W curriculum is teaching students how to prepare legal documents which reflect the conventions of the practising professional.

Teachers of legal reasoning and writing want to equip their students with the skills which will enable them to engage in valid legal analysis and to express that analysis effectively in writing. This is a co-operative effort between teacher and student. It requires thoughtful curriculum design, using appealing assignments which keep pace with the students’ development, accompanied by meaningful feedback. It also requires the students’ trust in the course and commitment to the learning process, which teachers must earn and conscientiously work to maintain.

First, teachers can provide a curriculum that reflects how lawyers approach analysis and writing in practice. Second, teachers can give their students opportunities to self-identify valid techniques for presenting legal authority to a reader. In terms of simulating how lawyers approach legal problems, teachers should explain that lawyers first objectively analyse a client’s legal situation before advising that client about an appropriate adversarial position and course of action. This understanding of how a lawyer approaches a client’s problem is reflected in the method used to teach legal reasoning and writing.

Often the first assignment in the course requires students to analyse and synthesise a limited body of authority relevant to a hypothetical problem, such as a common law problem in which the focus is on reading and understanding case law. Within the context of this assignment, students are taught how to identify the legal issues, read and analyse relevant authority and derive an overall understanding of the issues based on a thorough synthesis of that authority.

Students learn how courts interpret and apply prior cases, how to synthesise a group of cases to articulate what they teach collectively about the legal issue, and how to apply that analysis to the facts of the hypothetical problem. This written presentation should also reflect the realities of practice and the expectations of the practising lawyer. Thus, to arrive at the analysis of the legal issues in the problem, students read the relevant cases one after the other; worked through each one to understand the facts, outcome, and reasoning; and, finally, understand what the cases taught them as a group about the issues.

Rather than teaching students to apply a formula, the use of sample memoranda which present different analyses enables teachers to equip students with the ability to identify and then apply a more general, and yet logical, approach to structure. This approach reinforces two realities: that there is no one structure which fits all presentations; and that lawyers need to approach analysis and its written presentation considering not only their audience and purpose, but also the content, because the nature of the analysis will determine the structure of its written presentation. Samples can be used at various times within the first-year LR&W curriculum to further different pedagogical goals, as described in the examples which follow. Regardless of the pedagogical goal to which a sample is directed, teachers must actively engage students with each sample, discussing and dissecting the structure identified in the document.

Students are more receptive to understanding and applying structure in legal writing if they can see for themselves why it is needed. Generally, distribution of more than one sample is useful. As a result, students can see varieties in presentation based on different analyses. Next, the class should dissect each part of the memorandum, beginning with the facts section and the thesis paragraph. The class should read these carefully together, discussing the contribution of each sentence and how the author constructed each one to achieve that result. Students, as readers, will be able to identify what contributes to successful written communication, and even identify ways in which the material could have been presented more effectively.

Students now should have identified for themselves, through the careful reading and consideration of the sample, how the use of a logical structure to explain a legal issue educates and informs the reader, because they were the readers. When students are introduced to persuasive writing, many are ready and eager to learn how to prepare advocacy memoranda. Based on the careful reading of the advocacy memorandum sample, and working with the objective memorandum sample, students are now able to describe the general structure used to present the argument in the advocacy memorandum, similar to the analysis of the legal issue in the objective memorandum. By working with samples, students will have identified themselves how these parallel structures result in effective objective explanation on the one hand, and persuasive advocacy presentation on the other, and experience themselves how to convert the objective presentation to an advocacy presentation.

Teaching first-year law students is consistently challenging and enriching. A student is able to comprehend the content of a legal document when it is structured effectively. Further, when a student reads and dissects sample documents, that student is able to identify and remember the techniques that made those documents successful. As a result, the student can apply those lessons to his or her own writing, because now the student understands.