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Tuesday, January 12, 2016

A New Way to Crack an Egg

One of the eggs in the law school basket that needs to be cracked in a different way is how to effectively teach legal writing beyond the basics that are  ably covered in the required curriculum. I thought we might crack that egg together using a different model, one that builds upon the importance of professional identity as a key component of the process. Think of it as another way to put verbs into the sentences of our conversation. The idea for this course is one we have been kicking around at Stetson for awhile, and many of my thoughts about it come from conversations with several of my colleagues, particularly Associate Dean Vaughan, Prof. Jason Palmer, Prof. Chrissie Cerniglia-Brown and others. I think it fits our current discussion because it is a concrete example of how we might begin to reimagine the legal education experience in a way that considers professional identity and real world competencies at the core of the process.

A bit of history is in order. Most professors in law schools became professors because they excelled in their academic community while in law school, with many of them serving as a member of their respective law review. If you surveyed law professors, with the exception of those who teach primarily "skills" you would find a marked preference for the law review article, with many paens to its efficacy and outstanding ability to make a difference.

I must confess a dirty secret, I have written several law review articles, I even enjoyed the process at the time, but I did not do it to make a difference - I did it because it was required to get tenure, to show that I had the ability to think in those terms. They have value, as a academic exercise and as a contribution to the development of deep academic thought about the law. I would even say that everyone who wants to write a law review article should - but most students do not want to, and will never use that particular skill in the practice of law. Despite that fact, this academic focused writing endeavor is the primary vehicle chosen by law schools to teach upper level writing. 

We do it not because the students need it, but because we law professors are comfortable with it and our facility with the law review article helped us be successful. Unfortunately if ever there was a time when we needed fewer law professors in training it is now. We have 200 law schools, and we won't have 200 law schools in a few years. We need lawyers trained in the skills that will help them make a difference for their clients, not pad their respective academic credentials, nascent though they may be. See https://bol.bna.com/former-brandeis-president-law-students-are-right-to-worry/.

Why don't we change the paradigm, and look instead at what our students actually need out of upper level writing development? This proposed course presupposes they have learned how to research, can make an effective appellate argument, and understand the citation monster. So what do they really need? I would put to you it is not to write a law review type article that will never be published. Let's look at a different alternative.

This proposed course would take a student through the life cycle of the types of documents an attorney might expect to be called upon to produce over the course of regular practice. Each of the documents in question would be driven by a simulated event that set the background for the need to write. Those events could include:

Creating a new attorney client relationship.
Writing a demand letter.
Communicating with a business on behalf of a client.
Communicating with a Home Owner's Association on behalf of a client.
Providing a letter to a county agency.
Writing an editorial for the local paper.
Writing a bar journal article for publication in the state/national bar journal.
Communicating with an opposing counsel in writing on an issue.
Preparing a motion in limine.
Drafting a persuasive memo for a supervisor
Drafting a persuasive memo for a client.

If you think for a moment, when we are done the students would have a competency across a wide variety of documents actually produced in the practice of law, and a portfolio of writing samples they could rely upon when interviewing. You can take this idea a step further and tether this approach to either an internship or clinic, putting the students in real world settings and then bringing them back to the classroom to produce the written work. If you did this you could take advantage of intercession programs (between semesters) to develop these writing skills.

Even more importantly, this gives us an excellent opportunity to create a real sense of professional identity. Since our identity is formed, in part, by what we do each day, this approach would help the students to make their professional road by walking while giving them a real world skill set. Each of the scenarios above would require them to consider both ethical and substantive legal issues, forcing them to truly deal with what it means to be a member of our profession. The value would be immense and immediate, and for the majority of law students much more useful.

Now I am not suggesting that this approach should supplant the law review article paradigm, merely that it should be given as an alternative. I would put to you that many law schools will not do so because of their secret fear that the seminar courses which normally produce law review articles might very well die on the vine if our students had viable practical alternatives. The thought process behind that fear, and the impact it has on our ability to provide a better legal education, is a subject for another post.

Till then,

CR


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