Legal Writing After the First Year

It has been great to guest blog over the past month.  Thanks again to the Concurring Opinions folks for inviting me!

For my final post, I want to hit on one last curricular issue—legal writing.  At my law school, we are in the midst of a curriculum review, which has caused me to spend many hours investigating other schools’ legal writing programs.  The first thing that jumped out at me as I did this research was that the first-year writing programs at most schools look remarkably similar.  Most schools do predictive writing (i.e., memos) in the first semester and persuasive writing (i.e. briefs) in the second semester.  There are obviously some differences, but the core parameters are fairly standard.

Beyond the first year, however, there is tremendous variability.  Some schools require almost no writing whatsoever (other than a seminar paper, as discussed in my last post).  Other schools have a more sophisticated upper-level writing program.  For the schools that do require an upper-level writing course other than a seminar, these courses seem to fall into one of two categories.  The first category focuses on legal analysis.  These schools come back to the writing and analytical skills acquired in the first year and take them one step further, requiring students to analyze more complex legal problems.  The second category focuses on drafting.  These schools require students to choose from a menu of upper-level drafting options—litigation drafting, contract drafting, family law drafting, etc.

Assuming that a school is committed to legal writing, which model should it choose?  A colleague and I spent hours one day (literally hours!) debating this question until we both realized almost simultaneously that it was a fool’s choice.  On one hand, as my colleague reminded me, we all know that our students don’t emerge from the first-year writing program with perfect writing skills.  There is real benefit in spending another semester working on the fundamentals.  This refinement is especially valuable in the second year—after students have emerged from the chaos that is the IL year, but before they head into their 2L summer jobs.  As I argued in my side of the debate, however, there is also real value in learning more than just memo and brief writing.  I would hate to send our students out into the world able to write a really good memo, but having no idea how to draft a will, employment contract, or license agreement.

At the end of the day, I increasingly believe that law schools should require both types of courses in the upper-level curriculum.  In saying this, I know that I will get pushback from people who argue that these courses cut too much into doctrinal teaching.  The law school curriculum is all about choices, often really tough choices, and one more legal writing/drafting course means one less course in something else.  Yet writing skills are a perennial complaint of law professors and employers alike.  It is a skill that, unlike understanding the nuances of the securities laws, for example, will stick with students throughout their legal careers.  And it is a skill that students may be uniquely positioned to appreciate in their second and third years after they have seen the importance of legal writing in the job market.

I know I am only reiterating what legal writing experts have been saying for years.  We can’t teach legal research and writing in four credit hours and expect our students to emerge as experts.  But I am struck by how much professors complain about their students’ writing skills and yet how low legal writing ranks on the typical hierarchy of law school priorities.  It may not be glamorous, but it is exactly the type of skills our students need to compete in this economy.  If you were designing the perfect upper-level legal writing curriculum, what would it look like?  Has your school gone through a similar discussion?

As one final point, before you feel too pessimistic about writing skills in law schools, you may want to check out this book.  Written by an adjunct at two anonymous colleges/universities, it will make you appreciate all of the seemingly bad drafts you have ever edited!  I also thought it was a fun read.

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2 Responses

  1. Mike Zimmer says:

    I have found the debate interesting but I want to add an element not so far addressed: Helping students learn how to think more deeply. Most people, students and professors alike (me for sure), need help thinking at a deep level. Writing is a vehicle that can be used to develop that skill.

    So, what advanced legal writing opportunities are most useful to achieve deeper thinking? I am not sure it matters. What matters is that the writing process involve writing, editing, rewriting, more editing, etc., until the dynamic of writer and editor has run its course. The investment of that time is, of course, the challenge on both student and teacher sides of it.

  2. JamesM says:

    Writing the same brief from the other side. A well plead offense must counter a an effective defense.

    Get them to write the complaint, then the defense of same.

    A good exercise it to enumerate how many well plead affirmative defenses can students come up with? Have they thought of all the angles, examined all the documents and delved into the case law for each?

    The biggest challenge in thinking is to challenge ones own opinion, belief and thinking.