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Kowalski, T --- "Toward a pedagogy for teaching legal writing in law school clinics" [2011] LegEdDig 42; (2011) 19(3) Legal Education Digest 38


Toward a pedagogy for teaching legal writing in law school clinics

T Kowalski

Clinical Law Review, Vol. 17, 2011, pp 285-388

It is sometimes said that most lawyers spend more time engaged in legal writing than in almost any other lawyering skill. Because law clinics are designed to train their students in the realities of law practice, it should be no surprise that students and their supervising attorneys spend a great deal of time planning to write, writing, talking about writing, and then writing some more. What is surprising, however, is how few course materials and teaching methods have been developed to teach advanced legal writing in law school clinics.

A perplexing phenomenon tends to occur each semester when a new group of students enters the clinic. Even those with top grades in their previous courses seem to lack even novice-level proficiency in research, writing, and analysis. For example, even when the entire first-year class learns how to write a detailed client advice letter in legal writing, just one or two short semesters later, new clinic students will often turn in a draft letter that contains no ‘date’ or ‘Re:’ line, misspells the client’s name, contains only one or two short paragraphs with little analysis, and provides an inappropriate assessment of the recipient’s legal sophistication or emotional state.

Not only do students often overlook applications for knowledge obtained in previous situations, they also sometimes appear to regress when asked to change contexts. For example, each spring semester when legal writing professors shift from writing objective office memoranda to a persuasive appellate brief, we see students who excelled at skills like formal analytical structure or citation during the fall term suddenly lose the ability to produce work at their previous performance levels in the new assignment. When we consult in our one-on one, post-grading conferences, these diligent students often express surprise and disbelief that they turned in briefs for their mid-term examination that contained these basic errors, as well as mistakes in even more fundamental skills learned long ago, such as sentence structure or grammar.

Just as legal writing professors lack the resources to ‘re-teach’ mechanics like grammar to graduate students, I suspect that one of the main reasons why the clinical scholarship has not deeply addressed the problem of legal writing is because it presumes that all of the fundamentals are covered during the first year and should not have to be addressed again with upper-division students. What I found in my investigations is that, surprisingly, this apparent amnesia is not truly a problem with our students or even with our ordinary teaching methods. The problem is the change in context, whether to a different course or even to a different type of written work product or client file. Once I began to research this problem, I eventually understood that the right question to ask was, ‘how can we help students to transfer their learning to casebook courses, clinic, and the workplace?’

‘Transfer of Learning’ is a small and often overlooked discipline within both educational theory and cognitive psychology. Simply stated, transfer theory addresses how to help learners connect prior learning to new contexts. When the context changes, the brain often is not able to immediately recognise that the skill sets it stored for a different context apply to the new situation, as well. Some cue is needed to trigger the brain to recognise that the new conditions are sufficiently similar that the previous skills should apply.

Curricular design and teaching methods can help students connect their first year legal writing training to their advanced legal writing experiences in law school clinics. During the first year of law school, those cues can come from anticipating future applications during the required writing courses. In the clinic, they can come from supervisory dialogue, from a somewhat more structured approach to student drafting at the beginning of the clinic semester, from one or more seminar modules, and from various self-teaching tools provided to the students by the clinic.

Although there are a number of competing schools of thought on the best pedagogical basis for various kinds of clinics, the most common is probably the client-centred approach. In that approach, clinicians avoid a paternalistic approach to counselling and advocacy. Instead, they teach their students how to empower differently advantaged clients to participate actively in setting the goals of the representation.

In that vein, clinics typically strive to teach their students to respect the client’s voice and to become better cross-cultural listeners and communicators. This increased attention on the influence of culture has ramifications for educators from legal writing programs who assist in designing criteria sheets or other teaching tools for clinical writers.

Rivals to the client-centred approach are now emerging, including models focused more acutely on learning and on social justice.

A learning-centred model posits that the educational mission of the university requires pedagogical imperatives to come first. The model has a strong basis in the skills training revolution brought about in part by the MacCrate Report, Educating Lawyers and Best Practices for Legal Education, but existed even before that time.

Under that approach, the supervising attorney’s ethical responsibilities to the client are met by simultaneously dispensing competent legal services, while sometimes elevating the educational experience over non-essential client needs. Much of the balancing seems to occur at the client and case-selection stage, and live-client work may be coupled with simulated work in order to offer more complete and consistent training.

Some of the dissent in whether the pedagogical approach should take precedence results from the concern that a case-driven model often results in very dissimilar experiences for students and carries no guarantee that a certain set of core lawyering skills will be learned in any depth.

Another major competing model springs from the community lawyering movement. Traditionally, the institutional and individual responsibility to the social justice mission of legal education comes in roughly third place to clients and students. Today, there is a small but growing movement of clinical professors advocating for an approach to clinical design and teaching that emphasises the social justice mission of the clinic somewhat ahead of its objectives to educate individual students and serve individual clients.

As part of any collaborative effort between clinical and legal writing faculty, time should be set aside to discuss which philosophies drive individual clinics and professors within the clinical program so that shared teaching materials reflect those values. To skip this step may result in teaching materials that appear too focused on formalism rather than on integrating best writing practices with a wider view toward holistic representation. At the same time, clinicians should also listen to legal writing professors’ reactions to these values. Many legal writing professors come from considerable law practice backgrounds themselves, and tend to reflect educational values that prize innovation.

Another popular, and sometimes competing, philosophy of clinical teaching is that law students learn best by sharing responsibility for the case with their professors, more like the manner in which junior lawyers often work with senior lawyers in practice. Collaboration is a work process in which participants share ideas and feedback concerning a task, often large and unstructured tasks such as strategic planning, but also more finite tasks such as the arguments to be used in motions. The working participants feel responsible for the work and are genuinely interested in each others’ ideas and respectful of different points of view – which they anticipate will improve the work product.

This teamwork style of representation among the assigned students and faculty has been called the collaborative approach. It differs from the more traditional, non-directive approach where the professor assumes a much more hands-off role and allows the students to handle all aspects of the client representation.

Clinics are well poised to adopt collaborative learning models. Many clinics differ from legal writing programs in that there is less of a hierarchical division between professor and student. The nature of live-client work and small student-teacher ratios means that much of the learning environment occurs in small groups or one-on-one.

In addition to training in lawyering skills, the collaborative approach fosters the development of professional identity. Because early legal employment experiences tend to be so hierarchical, clinic may very well be the first time a student has had the experience of being treated like a lawyer.

Like any philosophy, these differing approaches within clinical pedagogy are not always practised exclusively from any other approach, or in their purest forms.

When working together to develop teaching materials, educators may wish to discuss which aspects of the writing process can be explained and directed for the students.

The state of the art in legal writing pedagogy is solidly rooted in the New Rhetoric, a school of undergraduate composition theory developed in the 1970s and 1980s. The New Rhetoric departed from the traditional, formalist approach to writing just as client-centred clinical pedagogy developed as a reaction to the traditional, top-down, dispensation of legal services found to be so disempowering to marginalised clients. The New Rhetoricians perceived that writing is not separate from thinking: it is thinking. It should be axiomatic that the reason why the vast majority of legal analysis is presented on paper and not by the spoken word is that written analysis exacts such precise testing, revisiting, and resolution of one’s thinking. It is the very process of writing that exposes weaknesses in reasoning and authority and forces the lawyer to delve ever deeper into the problem to find the root causes and their solutions. No wonder, then, that good writing always demands the challenging – and even painful – process of recursive research and revision. Based on this perception that writing is really just a way of thinking and reasoning through a problem, New Rhetoricians focused their attention on the thinking/writing process. For this reason, contemporary pedagogical models are sometimes called the process-oriented approach.

In the field of composition theory, the process-oriented approach developed to include multiple drafts with professor ‘intervention’ at various points along the way, including the planning, drafting, and polishing stages. Before students begin writing, educators also break down the various analytical and writing processes into ever-smaller units, reducing them to steps, principles, components, and techniques. In this methodology, formal, written analysis is best taught to novices by exposing it and breaking it down into its components, replete with subparts and sub-subparts. Naturally, an understanding of the parts does not necessarily lead to an understanding of the whole in a simplistic, building-blocks fashion. But it does give the novice analyst a beginner’s, step-by-step approach which will understandably take years of practice, experience, and mentoring to develop into a fully nuanced, sophisticated skill set.

Moreover, to those of us who learned in the traditional ‘sink or swim’ approach to legal writing, it might feel like ‘cheating’ or ‘spoon feeding’ to teach in this fashion. But learning theory supports the notion that exposing the process enables students to learn more quickly and accurately. As a parallel example from clinical pedagogy, it is this very concern that novices need more express instructions and modelling that led clinician-scholars to recommend more collaborative work and a staged approach to clinical legal education.

Many legal writing professors use a variety of paradigms and checklists to help students break down and then reassemble the whole in meaningful form. These types of tools can be quite useful for clinicians in encouraging more experienced students to build on their previous formal training in order to self-teach the more formal aspects of legal writing, such as the parts of a motion for summary judgment, the function of a demand letter, the structure of a complaint, and so on.

Legal writing pedagogy for first-year law students recognises that novices must learn to play scales before they can play a sonata. Once students have learned their scales in legal writing, clinicians can bring them further along the path, bridging beginner’s skills into the more dynamic, unpredictable world of live-client law practice. Accordingly, legal writing and clinical programs should operate as a symbiotic – not oppositional – model. The tools that follow can help achieve that goal.

Such tools for self-teaching will work best if they connect the first year writing context to the clinical writing context by using terms familiar to students from their legal writing courses. Those terms could be thought of as the lexicon of legal writing.

Because writing is thinking, the New Rhetoric uses planned, staged intervention in the planning and drafting stages, rather than critiquing work after the writing project is already complete. In contemporary legal writing programs, this intervention usually takes place on a draft memo or brief that the student has polished to the best of his ability. The instructor provides written feedback and then meets with the student in a conference. Afterward, the student re-writes the project and deepens his analysis.

The form of feedback usually consists of detailed margin comments and some interlineations, followed shortly thereafter by a one-on-one conference to discuss strengths, weaknesses, and plans for re-writing the project. The written feedback should contain a reasonable amount of explanation so that the student understands not only what went wrong, but why it went wrong, and how to improve it.

Based on the similarities and differences between clinic and legal writing pedagogies, a pedagogy for clinical legal writing should consider a graduated approach to independence from directive to collaborative to nondirective depending on the student’s growth stage and the urgency of the task at hand; a feedback prioritisation plan that increases the emphasis on creative analysis in addition to formal structures; a legal writing lexicon for clinic that may consist of an ‘Esperanto’ that is also introduced at some point in that law school’s legal writing program; a method for bridging legal analysis tools from the first-year experience to the present; a modular, deadline-driven approach to early faculty intervention in the planning and drafting stages; and, when time permits, built-in opportunities for critical reflection before, during, and after a major writing experience.

In their ground breaking work on transfer theory, Dr David Perkins and his colleagues developed a number of strategies for ‘teaching for transfer’. The strategies to be employed depend on how far removed the new context is from the previous learning environment.

When the contexts are far apart, it is harder for the brain to recognise that learning stored in an earlier schema is appropriate for recall and application in the new situation. For example, a person who has basic skills in painting household interiors can learn how to apply different kinds of paint finishes with a small amount of additional modelling and instruction. But the same person would not be able to learn how to professionally paint cars or airplanes without significant education in the fundamental principles and new materials.

The essence of the transfer problem is that due to the way the human brain encodes new learning according to the precise context in which it was obtained, students often do not recognise when their previous training was designed to prepare them for a new assignment.

The shift in context is disorienting unless the brain can recognise enough similar features between the old context and the new context to signal a match. As a result of collaborating with clinicians, legal writing faculty can help students to create a schema for anticipating future contexts, sometimes referred to as forward-reaching transfer. At the same time, clinicians can help students by helping them to cue their learning from the past into the present through review, repetition, analogising, matching, and backward-reaching transfer. Such approaches might range from cross-program visits from faculty and former students, to cross-program collaboration on writing assignments, to the more difficult ideal of exposing students to a broader variety of work product with repeated opportunities to address the same types of work product.

Once students are enrolled in the clinic, legal writing and clinic faculty members can help students to cue their previous training through a legal writing refresher in the clinic seminar.

Furthermore, because clinic is often the students’ first opportunity to grasp the pervasive need for good letter writing in law practice, the instructors can move from review to new learning by expanding any letter writing component received in the first year to the various new types of letters one would encounter in practice, including letters that not only give advice, but also demand, negotiate, transmit documents, memorialise and confirm verbal agreements, and so on.

Many clinics already provide a detailed manual to their student attorneys to serve as a reference for clinic policies and as a teaching tool for core skills that a student may have to exercise before there is an opportunity to address them in the simulated clinic seminar. Based on my personal experience in helping to compile a clinic manual and in reviewing exemplars from other universities, the main skill usually addressed in such manuals are usually client interviewing and file maintenance, because the students are expected to review their case files and meet their clients shortly after the semester begins, while the seminar is only just getting underway.

Materials included in the manual are much more likely to be used than those that must be located by searching binders or computer banks full of other materials. In addition to exemplars and exercises and general exhortations about rules for handling correspondence, the manual can also include guidelines for consulting with supervising attorneys about expectations, drafting cycles, and other deadlines for all kinds of written product.

In their supervision, clinicians can help students learn to become more effective evaluators of their own writing by encouraging them to use exercises for self- and peer-critique. Several years ago, Professor Mary Beth Beazley devised a self-grading tool that students can use to triage their own analytical structure. Her method, which is called the Self-Graded Draft, is easily adaptable for different tasks and environments and holds great potential for helping clinic students to become more independent. In the self-graded draft, students learn to mark up and colour-code different parts of their analysis. This approach may sound rudimentary, but its simplicity belies its power to teach good structure, and even good technique.

As for peer critique, that tool has a love-hate reputation among the faculty and students who have used it, but the benefits promise to tip the scale even more in clinic than they do in legal writing. Proponents find peer critique tremendously enlightening as a teaching tool for both the critiquing student and the writing student, and thus a nearly indispensible aspect of legal writing pedagogy. On the other hand, peer critique exercises can be challenging to administer because they require precise instructions and feedback exemplars and a reasonable amount of novice legal writing experience among the students. Another very potent obstacle is students’ common fear that others will ‘steal’ their work and gain an advantage, not to mention fears about exposing one’s writing ability to competitive classmates. Finally, Professor Jo Ann Durako reports that ‘outlier’ students at the high and low ends of the curve sometimes feel that they gain little from the experience. Fortunately, in the clinic, many of the obstacles faced by professors teaching first-year legal writing are not present.

Because clinic students often work in teams on collaborative writing projects, the fear of grade disadvantage is largely ameliorated, as is the ‘outlier’ problem experienced in larger classroom settings. Moreover, the advantages of peer feedback dovetail nicely with clinical pedagogy, particularly as two of the greatest benefits are exposing students to collaborative work and providing them with tools for self-empowerment.

Basic feedback methodology may be unfamiliar to newer clinicians, to those without experience in teaching legal writing, and for those who have developed a good instinctive approach, but who are interested in improving their methods or correlating them to the styles students experience in legal writing. Three of those basic feedback techniques could be categorised as prioritisation, specificity, and tone. First, because students can only effectively process a certain amount and variety of critique at one time, each professor should adopt selective feedback priorities based on whether the student’s work represents a very early, middle, or late draft. In early drafts, the emphasis usually is on overall organisation and large-scale analysis, for example, has the student stated a legal rule, and is it the correct rule for the jurisdiction? As the drafts progress and the analysis becomes more rigorous, professors can focus on finer points, such as strategy, nuanced argument, and smaller-scale organisation such as paragraph order. Only in the final drafting stages is it usually valuable to focus on grammar and style, even though they can be very distracting – almost compulsively so – to the sceptical expert reader in early drafts. Heavy emphasis on style and grammar in early drafts usually detracts from time needed for better analysis, and tends to be wasted because sentences, paragraphs, and even entire sections will be removed or substantially altered in successive drafts.

Second, comments should be specific, not vague.

Third, because motivation is so crucial to performance and to successful transfer of learning, professors may want to consider the emotional effect of feedback on some students’ motivation as important to their professional growth and success. This is not to say that student attorneys should be coddled, but rather that the professor should aim to present some positive feedback when possible, and to frame critical feedback in terms of an opportunity to improve, rather than as a personal fault.

Although long sessions of writing and triage can be tedious, the rewards come from helping a new professional to become more proficient and independent in one of the lawyer’s most important skill sets, alongside such formidable qualities as critical thinking, advocacy, and professionalism. Through inter-program collaboration and individual innovation, both the clinic and legal writing faculties can become increasingly effective at helping to transfer and build upon students’ existing analytical skills.

While no one technique will work in every situation, a host of legal writing teaching methods can be adapted to the fast-paced, dynamic clinical environment along spectrums of assignment type, time frame, and the individual student’s stage of growth. Among these methods, earlier and more frequent intervention, a realistic drafting and feedback schedule, and the opportunity for student reflection at all three major stages are probably the most key.

Finally, in addition to the pedagogical benefits covered in this article, stronger collaborative ties with the legal writing program can increase professional well-being for faculty members in both programs, through new friendships, feelings of efficacy, and stronger mutual support in status issues facing all skills faculty.


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