AustLII Home | Databases | WorldLII | Search | Feedback

Legal Education Digest

Legal Education Digest
You are here:  AustLII >> Databases >> Legal Education Digest >> 2013 >> [2013] LegEdDig 42

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Falkoff, M --- "Using fiction workshop techniques in first-year legal writing classes" [2013] LegEdDig 42; (2013) 21(3) Legal Education Digest 37


Using fiction workshop techniques in first-year legal writing classes

M Falkoff

Journal of Legal Education, Vol 62, Vol 2, 2012-2013, pp 323-335

The ability to critique one’s own work is invaluable to writers in every field, but teaching students how to critique their work and the work of others is one of the most difficult lessons to impart.

A helpful discussion of the structure of a typical workshop appears in Frank Conroy’s essay “The Writers’ Workshop”.

Fiction-writing workshops tend to take a similar form, no matter where and in what context one studies. A standard course runs for a semester and permits no more students than there are weeks in the class. A typical workshop will thus enrol 12 to 15 students, each of whom is required to submit two stories for the class to review over the course of the semester. When a student puts up a story for workshop, she basically cedes control of the document for that week, and the class discusses that story, pretending that she, the writer, is not there.

Students are to address their comments to the room rather than to the writer, ‘whose presence... is superfluous’. The focus is on the text: ‘what the text really is rather than what the author might have wanted it to be or thought that it was’.

As Conroy points out, language cannot do the work of showing a reader what the author meant by a phrase such as yellow pencil; the reader has to add in the colour himself. The reader has to hear the tone of dialogue, to interpret metaphor, to ‘pour energy’ into the text. A reader has to serve as a sort of ‘co-creator’ of the narrative, based on what the writer has included in the text: the writer implies, and the reader infers.

Conroy then talks about writing that falls on different ends of what he refers to as ‘the reader- writer curve’. Good fiction writing (and, indeed, most high quality writing, academic writing included) occupies the zone in the middle, where the writer can imply things without having to spell them all out, safe in the knowledge that the reader will do the work of drawing the necessary inferences.

Not all writing exists in that space, though. On one end of the curve, the writer’s end, is writing that is internal, private, or overly difficult – writing that is not meant for other readers (journal entries), writing that is impossible for readers to interpret without assistance (encrypted text), or writing that is intentionally obfuscatory (specialised lingo designed to prevent entry into a particular area of inquiry, such as how some might describe legalese). On the other end of the curve, the reader’s end, is writing that requires little effort from the reader in order for it to be fully and completely understood, writing designed for those who might have difficulty understanding more sophisticated work (children’s literature), writing intended to appeal to the broadest possible audience (wire service articles), and writing meant to serve an educational or functional purpose (instruction manuals).

The utility of the curve, aside from its inherent logic, is that it provides a ready shorthand for discussing potential failings of a written work. If many class members are flummoxed by confusing elements in a story, they can describe it as too internal, as falling too far on the writer’s end of the curve. If a story’s elements seem overwritten or too obvious, it lacks subtlety and falls too far on the reader’s end. The class members’ ability to rely on this shared vocabulary allows for critiques to move more quickly into substance and detail; the task of communicating reader concerns becomes much simpler when everyone in the room shares a certain understanding about the nature of a particular critique. This shared vocabulary is one of the primary reasons the workshop structure is a particularly effective mechanism for delivering and receiving criticism.

The initial difficulty for many students is that collegiate essays, whether in the humanities or other fields, are pitched toward faculty members and graduate teaching assistants who are well versed in the materials at hand. Students become accustomed to assuming a certain level of comfort with the subject matter on the part of their readers, which is just another way of saying that both students and faculty, at the undergraduate level, expect writing to be pitched in the centre range of the reader-writer curve.

Legal writing instructors are used to thinking about legal writing as reader-centric; we may not initially realise how jarring that can be to students who have acclimated themselves to writing for audiences knowledgeable in their fields of interest. The approaches we suggest to them may often seem simplistic if not and pedantic, and students may be loath to believe that good legal writing might bear more resemblance to reader-centric documents, like instruction manuals or geometric proofs, than to documents focused more in the centre of the reader-writer curve that they have spent years learning how to master.

Giving students a vocabulary for talking about different kinds of writing, and the multiple goals of different kinds of writing, can serve to soften the sense of betrayal students might feel when introduced to legal writing and the ways in which it is distinct from writing they have done before. I tend not to use the formal reader-writer curve discussion in legal writing classes, introducing it instead to individual students where it seems appropriate, but we discuss audience extensively over the course of any given semester, and the more specific a sense of audience the students have, the easier it is for them to pitch their writing accordingly.

Toward that end, I have appropriated a number of techniques, cobbled together from various sources, to help students find and use that vocabulary. Instead of handing out an essay on the first day of class, as Conroy did, I hand out a memo before the first assignment is due, identifying the types of problems that tend to come up in student writing and which uses the same words I plan to use when critiquing student papers. In particular, I describe certain types of writing issues that come up frequently, such as the use of passive constructions; subject/pronoun and subject/verb agreement problems; overuse of font or language for emphasis; and use of language that is overly confusing, formal or colloquial. I also include some specific information about each particular assignment and its focus so that students are not tempted to discuss more than what is at issue in each given piece of writing. The combination of the class discussions and the memo is often enough to give students a sense of what our shared classroom vocabulary will be. I also distribute a handout describing what the workshop process is like.

Once the students are familiar with my vocabulary and the workshop process, we can begin. Running a proper workshop during a first-year legal writing class is difficult, if not impossible; part of the point of a class solely devoted to workshopping student writing is that it provides every student the opportunity to submit pieces for workshop, at least once a semester if not two or three times. I struggled with how to deal with this when I decided to incorporate a workshop into my class; I did not want to lose the benefit of a group discussion of a single piece of work, but it seemed unfair to allow a limited number of students the benefit of being on the receiving end of a critique.

Since I have always felt that workshops are more useful for those providing the critique than for those receiving it, despite the attention lavished on any particular piece of writing, it was more important to me that the class as a whole be able to workshop something together than that individual students receive workshops themselves. In addition, I was concerned about student perceptions that having access to one person’s writing might provide an undue benefit either for those in the class who are struggling (and who can crib from the workshopped paper) or for the person receiving feedback. Finally, I did not want to be too directive in how the workshop was run; I wanted students to take the primary role in discussing the piece before them, and I wanted to remain as hands-off as possible.

I resolved these various concerns by proceeding as follows. First, I include a statement in my syllabus indicating that I reserve the right to use student drafts in other classes but that they will remain anonymous. I teach two sections of legal writing each semester, so my next step is to choose a paper from each class to use in the other class – that way, the paper students are workshopping is not the work of someone in the section, and the person being workshopped is not aware of it. Prior to the workshop itself, I describe the paper we are critiquing as one that I wrote. They are aware that it is actually the paper of someone from the other section, but the fiction under which we operate is that I am the one whose work is being workshopped, which has the added benefit of requiring that I refrain from speaking and that one of them run the class. This, in turn, encourages participation, since the students do not like to leave the volunteer workshop leader to do all the work. I explain that the students will have about 15 minutes to read and make notes on the paper, after which the workshop leader will guide them through a discussion, moving section by section and from big-picture commentary to nit-picking detail. I recommend that they start by talking about what in the paper is working, so the writer knows what analysis or argument is speaking to the readers; then they can move on to talk about what needs work. I remind them that criticism that is not constructive does not assist writers in making changes, so every comment should be framed in terms of what the writer might do to improve. After the students have finished reading the paper, I select someone to run the workshop.

At this point, I invite the workshop leader to take over in the front of the room, and I take the workshop leader’s seat. I then shut up until there are only about ten minutes left in the class, and I focus on listening to the critique. Invariably I find myself taking notes on my copy of the paper as if it were my own, and I have to remind myself to asterisk the comments that are worth discussing briefly at the end of class, when I take over for a few minutes before setting the students free for the day.

The first thing I always notice is how very critical the students are no matter how strongly I advocate in favour of starting with what is working, the students invariably all but ignore this directive and launch right into the negatives, only remembering midway through to comment on something they did not find totally offensive to their sensibilities.

The next thing the workshops share is their focus on substance, which always pleases me. It would be very easy for the students to start and end by identifying language and grammar problems, but the students are rigorous in their attention to the goals of the paper, the analysis or arguments the memo or brief seeks to present. They do discuss language and grammar, citation and style, but mainly with respect to how those aspects of writing affect the ultimate task of the paper – to convince readers that the substance of the analysis or argument is correct. Their focus tends to be on the structural elements that we have gone over in class: the importance of always identifying the issues clearly, discussing the law in detail before engaging in analysis or argument so as to avoid appearing defensive, drawing analogies from case facts where appropriate and reasoning directly from the law where it is not, and concluding definitively enough to give readers a clear sense of what the likely outcome is or should be.

I am frequently amused by the shift that happens between the first workshop and the second, which is less a function of familiarity with the format and more a function of the students having received my comments and attended a one-on-one conference where we discussed their papers in detail. While the first workshop contains occasional reference to the terminology I provided in the memo I handed out before their assignment was due, the second workshop replicates the form and content of my critiques to the point of near mimicry. They have now had the opportunity to see how I use my classroom vocabulary in the abstract (in the common problems memo), to see how I use it with respect to them (in their individualised feedback), and to hear how it sounds when I talk about their papers (in conference). The combination of these things seems to be enough to allow them to feel comfortable talking about these issues as I do, using shared terminology that everyone in class understands.

Another added benefit of the first workshop is that it allows students to anticipate my comments. I tend to be somewhat over inclusive in my in-line critiques of ungraded first drafts in order to encourage students to make their peace with a multi-stage drafting process. I want them to understand that the first draft will never be good enough to submit, no matter how far into one’s writing career one is. Having a workshop before the comments come back helps to provide some context, and frequently they will report to me that they were unsurprised by the critique after discussing the workshop draft, since looking at someone else’s work gave them a better sense of what was missing in their own.

This highlights what I consider the primary benefit of workshop: it assists students in learning how to self-critique. Teaching students how to view their own work with a critical eye is one of the most difficult tasks of writing instructors, especially since students can be resistant to the revision process. As in any field, it is much easier to see others’ flaws than it is to see one’s own, but pointing out those flaws provides a structure and an approach for going back and looking at one’s own work

I end the workshop by first leading the class in a round of applause for the workshop leader and then making sure I emphasise how impressed I am with the depth and quality of the student critique, which is almost always the case. For about five or ten minutes I then go over some of the comments students made in order to reinforce the stronger points and clarify areas of contention which are usually focused on minor issues like citation or grammar, so misstatements or misunderstandings are easy to clarify.

This modified class structure provides students with as many of the benefits of the workshop environment as we can manage, given the time and subject matter constraints of the first-year of law school. However, there are other approaches that might be equally effective in achieving some or all of the goals of a workshop depending on the size of the class and the inclination of the individual faculty members, including workshopping excerpts of different papers for purposes of comparison, or allocating extra time so that all students can workshop small pieces of their assignments in order to have the experience of being both the critic and the subject of the critique.

The various methods of structuring peer review in the legal writing classroom have been discussed extensively by others, so a comparison of workshop and peer review shows how they differ and where they overlap. The two techniques are complementary, not contradictory, and instructors can use them in conjunction with each other or separately, as they choose.

Peer review, as utilised in legal writing classes, involves students breaking into small groups and exchanging written work product for critique. The goal of peer review is generally to allow students to see how other students view their work product, in an environment self-contained enough to avoid overwhelming the student with feedback. The process of learning how to engage in peer critique is in some aspects a by-product of the desire to get to the ultimate goal of seeing how one’s work is received by others. Though it may not always be the intention of the instructor, peer review seems, for students, to focus on outcome (the critique) over process (learning how to critique).

Peer review thus can serve as a logical next step for a class that starts with a workshop, in that it can utilise the shared vocabulary students develop and allow them to apply that vocabulary to individual papers in a manner that would normally be time prohibitive. Permitting some sharing of work product also allows students to start developing a writing process that takes the opinions of their colleagues into account, which is more how practising attorneys write.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/LegEdDig/2013/42.html