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Schulze, L N Jr --- "Transactional Law in the Required Legal Writing Curriculum: An Empirical Study of the Forgotten Future Business Lawyer" [2007] LegEdDig 5; (2007) 15(1) Legal Education Digest 13

Transactional Law in the Required Legal Writing Curriculum: An Empirical Study of the Forgotten Future Business Lawyer

L N Schulze, Jr

[2007] LegEdDig 5; (2007) 15(1) Legal Education Digest 13

Suff U L Sch Research Paper No. 07-03, 2007, pp 1–55 (forthcoming in the Clev St LR)

News Flash: All lawyers are litigators.

Perhaps you are thinking that this thesis will prove difficult to defend. You would be right; the truth is that not all lawyers are litigators. Yet, by examining a cross-section of American law schools’ required Legal Research and Writing (‘LRW’) courses, the average on-looker would think that every law student will someday become a litigator.

In fact, research shows that the vast majority of first-year law students, despite the trend toward legal specialisation, have no idea what area of practice they will pursue. Furthermore, even those who are targeting a specific subfield of the law, a surprisingly small amount claim to be headed towards a life of litigation. Yet ABA/AALS accredited law schools overwhelmingly focus students’ attention on litigation by means of their required LRW curriculum. These courses traditionally begin with an office memorandum assessing the likelihood of success of a forthcoming lawsuit, then move on to a persuasive brief (usually in a trial court), and conclude with an oral argument. This approach both subliminally pushes law students towards litigation and at the same time omits transactional drafting skills many will need.

Is there any justification for the inclusion of transactional drafting instruction within the mandatory LRW curriculum? While litigation training in first-year LRW courses allegedly has formative benefits for all students, would transactional drafting instruction be a waste of time for those uninterested in that subject? On the other hand, by ignoring transactional skills are we subliminally and artificially pushing students towards a career in litigation? In so doing, is LRW pedagogy nothing more than a tool of the marketplace, funnelling future workers into practice areas to supply work-force demands?

The task of expanding law schools’ writing curricula is not without its difficulties. This article concludes, however, that only through this expansion will legal education adequately prepare students and quell the continuing complaints from legal employers that new lawyers simply lack basic writing skills.

Is there really a need, from a demand-side analysis, for more transactional instruction?

This Part addresses that question in two ways, both empirically-based. First, it discusses the results of a large-scale survey of first-year law students asking them, as they entered law school, whether they were interested in a career in litigation, transactional law, or ‘other’ areas of law. The second analysis, a separate qualitative study, probes more deeply. A number of students, all inclined heavily towards careers in transactional practice, were specifically asked (in a questionnaire format) to detail their experiences in the strictly litigation–oriented mandatory LRW course.

In the late summer and early fall of 2005, I conducted an extensive survey of incoming first-year law students across the nation.

Ultimately, thirteen schools agreed, and the chosen schools equally represented several controlled categories: (1) geographic location; (2) law school size (based on number of students); (3) public or private; and (4) the U.S. News & World Reports tier rankings. In other words, there was approximately an equal distribution of schools from each sub-groups of these categories.

By the end the survey, 969 students responded. This represents a response rate of 39.19 per cent, which is considered an acceptable and statistically significant response rate for a survey of law-related subjects.

Ultimately, 167 students (or 17 per cent) answered that they were ‘very likely’ to pursue a career in litigation. Two-hundred students (or 21 per cent) reported that they would be ‘very likely’ to pursue a career in transactional law, while 148 (or 15 per cent) stated that they were ‘very likely’ to pursue a quasi-legal career. For the ‘somewhat likely’ category, 234 (24 per cent) chose litigation, 243 (25 per cent) chose transactional, and 254 (26 per cent) chose quasi-legal. In the ‘possible’ category, 283 (29 per cent) chose litigation, 202 (21 per cent) chose transactional, and 269 (28 per cent) chose quasi-legal.

The remaining results detail the percentage of students unlikely to choose the given areas. One hundred fifty-seven students (or 16 per cent) reported that they were ‘somewhat unlikely’ to chose litigation. One hundred sixty-five students (or 17 per cent) chose this category for transactional work, while 184 (19 per cent) stated the same response for quasi-legal fields. In the ‘very unlikely’ category, 121 students (or 13 per cent) chose litigation, 144 students (or 15 per cent) chose transactional, and 104 (11 per cent) chose quasi-legal.

While these figures by no means prove that students pervasively prefer transactional law, the results nonetheless lead to the conclusion that there are more students interested in transactional law than previously thought.

The point here is that despite the survey results showing a significant interest in transactional drafting instruction, a collective interest actually greater than or equal to the collective interest in litigation, schools’ curricular choices show an unawareness of this preference. This unawareness is most starkly demonstrated in the first-year writing course, which is virtually devoid of any transactional writing instruction.

In any event, the survey data shows that uncertainty exists in 1Ls’ minds regarding their careers, and I suggest that the lack of transactional instruction in the LRW curriculum (coupled with the litigation oriented Langdell casebook method) artificially drives many open-minded students towards litigation.

So, how does the data prove this contentious thesis?

I suggest that this constant and unrelenting focus on litigation in the early stages of law school subliminally pushes students towards careers in that field. That begs the question why schools would do such a thing; why would law schools push students towards one field while neglecting those who might seek a future career in another field? One explanation is that law schools, eager to aggrandise their job placement statistics and thus improve in the all-important U.S. News & World Reports law school rankings, push students towards practice areas where the job market has openings. It has long been held that, even when the economy is slow, litigation still persists. This cannot be said for the transactional field, whose hiring needs are generally dependent upon a booming business climate.

Attempting to secure jobs for graduates is certainly a benevolent and appropriate goal. When curricular choices are made based on market trends to the detriment of students otherwise inclined, however, those curricular choices take on a different character. In this way, are we not capitulating our own academic freedom and the futures of our students for the benefit of the market? This leads to the conclusion, buttressed by the results of the survey showing significant interest in transactional law, that LRW curricula should give equal treatment to all students, not just future litigators.

Determining how to change the curriculum to accommodate these needs, however, requires a more in-depth analysis of how the current course affects transactional law-oriented students and what methodologies would best serve them. Accordingly, I designed a questionnaire asking these students to describe their experiences in the traditional litigation-based LRW program and seeking their input into what curricular choices might best serve the interests of all students.

Therefore, I chose my own students as participants, knowing both that the curriculum from which they learned was litigation-oriented and knowing which students were inclined toward transactional law.

The questionnaire asked nine in-depth questions. These questions sought input into some of the issues of debate relating to transactional drafting instruction.

The conclusions to be drawn from the qualitative research described above are somewhat contradictory. First, surprisingly, transactional law-oriented students generally are content receiving legal writing instruction in the context of litigation. This likely stems from their realisation that the skills gained in such a course are fundamental and transcend the transactional/ litigation dichotomy. Second, if given the choice, on the other hand, they would advocate for additional legal writing training, after the first year, in the transactional area. Third, rather than advocating that the first-year course be changed to include a mix of transactional and litigation writing, students assert that the legal writing curriculum should instead be expanded to include additional semesters of training after the first year course teaches them the fundamentals.

First, I conclude that law schools nationwide are not offering sufficient numbers of transactional drafting instruction. I base this conclusion on three facts: (1) only 28 per cent to 33 per cent of schools offer instruction in transactional drafting; (2) Twenty-five of these, or 41.67 per cent, indicated that demand exceeded availability; and (3) at best, 30.77 per cent of mandatory LRW courses include transactional drafting.

Second, I conclude that ‘if you build it, they will come.’ In other words, if law schools offered more transactional skills training, students would fill those classes. I base this conclusion upon the fact that 41.67 per cent of all transactional courses nationwide are overenrolled, a statistic that exceeds that of all other specialty drafting courses. Furthermore, as more transactional skills courses have been added over the last few years, the number of students enrolling has increased and actually continues to create more over-enrolment.

Finally, I conclude that where transactional drafting instruction is offered, law schools are generally not entrusting this course to LRW professors. I base this conclusion upon the statistic that LRW professors currently teach only 30 per cent of transactional courses nationwide, and that number decreased from 35 per cent last year.

Should a school cram transactional drafting skills into the first year required course, or should schools instead teach this material later in a law student’s career?

Students learn a huge amount in a relatively short amount of time: general legal analysis skills, predictive memo writing, persuasive memo writing, oral argument, client letters, citation skills, and legal research (both traditional and CALR) are just some of the major subjects taught.

Added to this problem is the fact that learning transactional drafting requires knowledge of the doctrinal fields underlying the writing. All these factors, therefore, lead to the conclusion that the first-year LRW courses may be an inappropriate place for an extensive journey into the details of transactional drafting.

Some contend that because LRW professors generally hail from a litigation background and become familiar over their years of teaching with litigation-oriented writing, they are not ideal candidates for the teaching of transactional drafting. This argument fails for two reasons. First, presuming that LRW professors cannot be ‘cross-trained’ in transactional skills demeans talented legal educators. Second, while most LRW professors are quite comfortable with the expertise they have developed in litigation-oriented writing, expansion into transactional drafting might be just the sort of change that can aid with the oft-noted mid law-teaching career doldrums.

A number of issues are related to the integration of transactional drafting instruction into the LRW curriculum: costs, placement, resources, and others.

Accordingly, rather than attempt the futile exercise of recommending one allegedly perfect model of integrating these skills, I will instead set out to describe three different models that address the different needs of different programs.

In [the integration] model, transactional drafting instruction is integrated into the mandatory first-year LRW course.

In [the expansion] model, transactional drafting is implemented in post-first year LRW courses.

In [the writing across the law school curriculum] model, transactional drafting is not specifically added or apportioned to any one place in the curriculum, or even in the LRW department. Instead, as with all other writing components, it is interwoven throughout the doctrinal curriculum and provides a more systematic and system-wide writing experience. This enhances not only the students’ writing but also their understanding of the doctrine.

In [the hybrid] model, LRW faculty and doctrinal faculty with transactional background team up to teach transactional writing. This solves several problems. First, many doctrinal faculty shy away from writing courses due to the extensive amount of grading and commenting that takes up a great deal of time. In this model, LRW faculty, who are accustomed to the teaching load of writing courses, would likely be responsible for much of the grading and commenting. Second, this model also solves the problem of the relative lack of experience of LRW in transactional law. The doctrinal faculty can focus on the substance, while the writing faculty can focus on the writing elements. Third, this model also likely solves resource issue of where to find hypotheticals because doctrinal faculty likely will have such materials from their days in practice. Finally, this model also creates a bridge between doctrinal and LRW faculty, thus establishing better relationships and ultimately likely leading to the betterment of LRW faculty in law schools.

There are downsides, or obstacles, to this approach. First, expending resources on two professors to teach a class may cause many law schools to think twice about this model. On the other hand, given the reduced hours thanks to co-teaching perhaps professors, both transactional and writing, would be willing to split the salary increase involved. Second, some doctrinal professors may be resistant to the notion of co-teaching with LRW faculty. It seems, however, that for this model to be feasible, co-teaching between doctrinal and skills faculty would be a pre-condition. Despite these possible short-comings, the hybrid model offers not only a viable methodology for teaching but also side-effects beneficial both to students and faculty.


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