Law School Academic Support Blog

Order Out of Chaos (Again)

Students often ask me for advice on how to write scholarly articles to fulfill upper-level research and writing requirements, and one of the chief difficulties they face is how to take a mass of research and organize it into an outline.  Last spring I suggested a series of questions that students can pose for themselves as a way of developing the structure of their articles.  Here they are again:

I first make certain that they know two things: 

       1) that they have to discover a clear thesis – a point they wish to make that can be stated in a sentence or so; and

       2) that they should arrange their material by considering it from the reader's point of view – a reader who is relatively uninformed, skeptical, and possibly hostile to the thesis the student is asserting.

Given those two principles, they should see all of the questions as an extrapolation of one key question:

What does the reader need to know, understand, and believe in order to accept my basic point, i.e., my thesis?

From that question come several useful questions they should ask themselves to spur their thinking:

1. What is the point that I am trying to make – i.e., what is my thesis?

2. Why is my thesis important?  (Why should the reader care?)
     - Does it solve a problem?
     - Does it expose a problem that needs to be solved?
            - an injustice?
            - an inconsistency in the law?
            - an inefficiency in the law?

3.  What legal theories and doctrines underlie my thesis?

4.  What policies or values does my thesis exemplify or reflect, and are they likely to be shared by the reader?

5.  What changes in current theories or doctrine does my thesis require in order to be accepted?

6.  What practical obstacles exist to the implementation of my thesis?

7.  What must be done to overcome the obstacles?

8.  What shared values can I appeal to? 

Given the answers to 1-8:

9.  What must the reader know?
      - The nature of the problem or the origin of the problem, for example.

10. What must the reader understand?
      - The effect of the problem?
      - The logic of the theories or doctrines underlying or setting up my thesis?
      - The logic underlying my thesis?

11. What must the reader come to believe in to accept my thesis?
      - The need for a solution?
      - The importance of the problem?
      - The importance of my thesis?
      - The validity of the theories or doctrines underlying my thesis?

12. What are the logical steps for a reader to go from uninformed and unconvinced to informed and
convinced?

The list is hardly exhaustive, of course, and the sub-questions under each larger question are merely examples; but I have found that the list largely reflects the implicit and explicit questions I ask myself when I structure an article.  From such questions the writer can identify the necessary concepts the reader must grasp and begin to see potential structures that would help the reader do so. 

The writer will likely discover that several effective structures might work but will also likely discover that certain concepts must be clear before others will make sense; so only those structures that respect that fact will actually work. 

I thought my students might find an explicit list of questions helpful to spur their thinking and give direction to their writing, so I scratched out this list.  I thought you might also find the questions helpful (or a better list of your own making) if students ask you how to begin to bring order out of the chaos of their research.  (dbw)

Preparedness of Incoming Law Students

Cathaleen A. Roach has written a thought-provoking article about trends we may expect to see in our students over the next few years, trends that are not entirely encouraging.  Several studies have suggested that students in high schools and colleges are receiving less and less instruction and practice in research and writing and, as a result, are graduating college with increasingly poorly developed analytical skills.  In addition, students are exhibiting increasing passivity in their approaches to learning.

Her article has important implications for legal pedagogy in general and academic support efforts in particular.  You will find her article, "Is the Sky Falling?  Ruminations on Incoming Law Student Preparedness (and Implications for the Profession) in the Wake of Recent National and Other Reports," in 11 Leg. Writing 295 (2005).(dbw)

The Interrelationship of Research and Writing

I would like to provide a follow up to yesterday's (March 15) posting to add some important context.  In that posting, "Helping Students Bring Order Out of Chaos," I suggested a list of questions that students can use to help them think through how to organize a mass of research results into an outline of a scholarly article.  I asked my colleague Paul Callister what he thought of my advice because Paul, who directs our law library at UMKC, also co-teaches with me a course in scholarly writing.  He, not surprisingly, suggested that we must keep clear the ongoing interrelationship between writing and research.

Paul is absolutely right, and his point is important.  The writing process and the research process are intertwined for the scholar because both, in reality, are different manifestations of a thinking process that begins at the first inkling of a potential topic and continues to the last editing decision. 

Throughout, the research directs the writing, and the writing directs the research, right up to the last moment of the process.  Anyone who produces scholarship knows that the entire endeavor, from start to finish, continually sends the writer back to rethink the material, to research it from a different angle in order to flesh it out or refine it in new ways necessary to the writer's constantly evolving understanding.

When a good writer asks, early on, why a problem is important, she has only begun to really ask that question.  She knows that if she stops asking it because she has compiled some research results – even a large number of research results – she has effectively stopped thinking about a critical aspect of the problem and has closed herself to new understandings.  As a good writer, she will keep that question on the table to very end.

Students need to understand scholarship in those terms.  Scholarship is about actively engaging ideas and letting that engagement transform the scholar's own understanding until the last sentence is tweaked for the last time.  In other words, the questions on yesterday's list are actually ongoing questions that, along with others, should have been asked and researched long before – and should be asked and researched long after – the outline of a first draft. 

Within that ongoing process, of course, the questions can be put to multiple uses.  The use to which my posting suggested they be put is one of organizing and focusing the writer's thoughts for the purpose of creating a structure for the article.  Once that purpose has been tentatively achieved, however, they will be used again and again for multiple purposes, including revising (rethinking) the organization that initially emerged.

When students approach scholarship as nothing more than gathering and sorting an impressive mass of material, they have missed the point of the entire endeavor.  They are thinking in the simplest and least useful ways about what are likely important ideas. 

When, therefore, one of our students comes to us asking for advice regarding his scholarship, we must make certain he truly understands the task:  to think deeply about an idea and to refuse to stop thinking deeply until the final draft is finally complete.  As a result, he will find himself researching even in the last revision because even in the last revision he will still be refining his understanding of that idea. (dbw)

Spectral Analysis

I have been meeting with students about their legal writing papers this week. Lots and lots of students. The papers are due tomorrow, so I am seeing about 8-10 students a day until then. Often these students have done all the requisite research and really given the problem a lot of thought, but cannot seem to organize their issues even using the templates we bombard them with: IRAC, CREAC, PREAC etc.

The biggest problem seems to be in discussing and synthesizing the vast array of case law they have found in the E sections for CREAC and PREAC, or in the A for IRAC. Students often seem to flounder on what information on the case to include and which to exclude in these sections and more importantly how to arrange the cases in their thematic paragraphs. I’ve actually invented a new word to help students in determining what not to do, “write thematically, not casematically.” Nifty, huh?

But really, I tell students that they can usually sum up the case in two sentences using the formula of facts, holding, rationale (oh my!). It should look like this: “In the Smith case, the court found that monkeys were in fact members of the legislature because they were easily as capable as elected officials in making law for the state. The court reasoned that if a ham sandwich could be indicted, then a monkey could rule the land.” This is not a real case (I felt the need to mention that because you never know).

I have also been advising students to use these “explanation of the law” areas to lay out a spectrum upon which they can place their fact pattern to show that they are correct. In persuasive writing you can control the spectrum so long as you do not misstate the law or attempt to mislead the court.

Basically, the spectrum idea looks like this: in [our first case] in this jurisdiction we have slam-dunk summary judgment, in [another case] the court granted summary judgment where the facts were slightly less compelling than ours and finally, in [a third case], where the facts are highly distinguishable from ours, the court laughed at the motion for summary judgment and then set the motion papers on fire using their wands. The key is to lay out a spectrum where the relief you are seeking has been granted to parties who are less worthy than you for reasons you will explain later on (in the next paragraph in IRAC or really soon in CREAC) in the paper.

This makes perfect sense to me, but I have been forced to draw pictures in some cases to make this point to students. I fully expect to see my post-it diagrams of case law spectra flutter by me on the Boston Common some day. Probably tomorrow, after the papers are turned in. (ezs)

Incomprehensibilty

Do you find that as the "final brief" deadline approaches, first-year students at your school become [more] frenzied?  Do they blow off classes?  Do they stay up all night writing, rewriting, and drinking way too much coffee?

This is not a good thing.

However, neither is taking the first-year legal writing class too lightly either.  The practice of law begins now.  Practice ... during these few years of law school ... is important.

Here is a recent (February 2006) example of what happens when students (apparently) don't pay enough attention to their legal writing class.  See King Order.  Be sure to read the footnote.

Thanks to Jon Tonsing for bringing this order to my attention.  (Note: Jon is not involved in the litigation that spawned this order.)   (djt)

Wow: Technology!

You're gonna love this.

Read the attached, then visit the web site: digital notes.
(Many other websites describe the product, and offer other prices, so shop around.)

Your notes, student notes ... whaddya think?

Do you have some tech ideas you use that others might be interested in?  Send me an e-mail note.

(djt)

Writing Help for ESL Students (and anyone else who needs it)

In a discussion thread on the Legal Writing Institute Discussion List, Professor John Haberstroh of the Northwestern University School of Law contributed an extensive list of resources that he had compiled to help students for whom English is a second language.  The list is in Word format and contains "live" links to numerous Internet resources for students who need help with writing, grammar, usage, and other elements of the writing process.  The list was compiled to help ESL students, but it would also be invaluable for any law student who is struggling with writing. 

Professor Haberstroh has graciously given us permission to offer the resource to the academic support community.  You access can the document by clicking on the link below and can download it for your own use. (dbw)

Download esl_legal_esl_on_the_internet_805.doc

Offering a Course in Scholarly Writing

In an attempt to provide more support for upper-level students who are tackling their R&W requirements, UMKC's Law Library Director, Paul Callister, and I developed a course in scholarly writing last spring.  You might consider proposing a similar course for your law school as part of your ASP efforts.

The course is designed as a one-credit, pass/fail offering that takes students from the initial stages of topic development through strategies for getting their articles published in appropriate journals.  Using two outstanding texts, Mary R. Falk's Scholarly Writing for Law Students and Eugene Volokh's Academic Legal Writing, we use a "writer's workshop" approach that includes direct instruction in the writing process and advanced research techniques, as well as numerous opportunities for the students to share their research and drafts with one another for critique and advice. 

Paul provides most of the instruction in research; and I provide most of the instruction in writing, each of us playing off the other's focus to create as best we can an integrated approach to the material.  We do not grade the students' work or even provide much reading or critique because we believe that such input should come from their individual faculty advisers.  Our objective is to give the students strategies and techniques they may not get from advisers and to help them work through writing and research difficulties as they arise.  As long as they attend the class and participate fully, they can earn the credit.

One of the most important and appreciated facets of the class, we have found, is the workshop approach that allows students to bounce ideas off each other and obtain feedback as their projects develop.  They are not allowed to edit each other's work, of course, or to collaborate inappropriately; but they seem to benefit tremendously from the workshop interaction as they test their own theses and those of their peers.  It is intriguing to watch them as they talk through conceptual difficulties with one another and find their thinking crystallizing into more coherent and focused approaches to their projects.

The class is scheduled to meet for an hour, once a week.  When the students' schedules permit, however, we sometimes take a couple of weeks off to allow them to work on their drafts and then reconvene for an extended session that allows for more extensive group work.  Last spring, we were able to schedule two class times during the week to give ourselves more flexibility in class meetings, given that a one-hour course need only meet once per week.  This fall, however, our students' schedules made such an arrangement impractical; so we stuck with once a week.  Nevertheless, the interactions were rich and beneficial.

We are still massaging the course and experimenting with our approach, but students seem to have found it quite helpful so far.  Because we have avoided the grading load, the course has not been particularly burdensome, as writing courses go; and our rapport with the students has had more of a "coaching" feel than is sometimes true of first-year writing courses, where students and professors have to deal with disappointing grades on the students' assignments. 

All in all, our feeling is that the course has been a success and has addressed an important need for students.  You might want to explore a similar offering, perhaps using a larger team of instructors or guest lecturers from among the scholars, writing professors, and librarians on your faculty.  The resources are there; with a little creativity, you can offer an important set of resources without creating too much strain on anyone's already crowded schedule. (dbw)

Helping Students with Their Upper-level R&W Requirements

As you are preparing your spring ASP program, you might consider adding a scholarly writing component.  Many students arrive at law school already struggling with writing generally, and their struggles are compounded as they strive to master writing for legal contexts.  The problem becomes even more complex as they attempt to move from the instrumental legal writing they learned in the first year to the scholarly writing demanded by their upper-level R&W requirements.  Some ASP workshops on scholarly writing or even a full-blown scholarly writing course can be a great help.

Consider what many students face as they enter law school.  They come in with poor training in writing and a "how much baloney must I pour into this paper to get to the page limit" approach to research-based writing assignments.  They must learn to research what for them are dizzyingly complex legal problems in a completely foreign library system.  They must learn to write with precision for an exacting audience that will consist mainly of lawyers and judges who have no patience for sloppy research or fuzzy legal thinking and writing.  They must learn to tailor this research and writing to resolving specific legal questions raised by hypothetical fact patterns and either predict how a court would likely rule or persuade a court to rule in a particular way.  They learn IRAC.

Then comes the upper-level research and writing requirement.  No longer focused upon a discrete set of facts that raise a set of specific legal issues, the R&W requirement forces students to cast their nets into a legal ocean they have barely learned to navigate (and even that navigation has been learned mostly close to shore) and come up with something interesting and novel to say about a legal topic they barely understand. 

When they begin their first tentative forays into the world of academic legal writing, they find that their seemingly fresh, new topics have already been the subject of intense scholarly exploration by seasoned law professors.  Finally, even if they can come up with something useful and novel to say, they find that because there is no hypothetical fact pattern to which their research and writing must be tailored, IRAC is useless as an organizational tool.

They could use some help.

One way to help might be to create a series of workshops on scholarly research and writing for legal audiences.  The ASP professional need not be the one who actually conducts all of the workshops, of course.  Recruiting other law faculty and librarians to deliver the sessions can be an excellent way to provide the students with very practical and insightful advice on developing topics, using research tools not covered in first-year writing courses, and tailoring writing to academic audiences.  After all, a law faculty is made up of scholars, and the law library is filled with people who think about research problems all day long.  Many of those people are rich sources of experience and expertise and would be delighted to help.

It is true, of course, that students have individual faculty advisors for their R&W assignments.  Those advisors, however, may not always have thought deeply about the processes of legal reseach and writing. They may have produced extremely important scholarhip in their particular areas of law, but ironically their extensive backgrounds can sometimes make it difficult for them to explain to a novice how to discover and develop a novel topic when everything in the field seems novel. 

Some of those scholars, on the other hand, are quite interested in and thoughtful about the processes that drive good scholarship; and they can provide an abundance of practical advice for novice scholars.  It makes sense for the ASP professional to tap such expertise for the student body as a whole whenever possible.

Librarians are also a treasure trove of research strategies that students have yet to encounter.  Students learn basic legal research in the first year; but good research librarians can open up a much larger world of strategies and resources for budding legal scholars, a world even many faculty advisors may not realize exists.

Finally, and certainly not least, legal writing professionals are often well-established scholars for whom thinking deliberately about the writing process is second nature.  Many would relish the opportunity to share what they know about scholarly writing and its similarities to and differences from the instrumental writing students encounter in the first year.

A step beyond a workshop series would be a full-blown course in scholarly writing.  Later this week, I'll describe how such a course might work.  (dbw)

Caught in the Middle Again

This is the time of year when I get a lot of referrals for help with first-year legal writing assignments. These students have turned in two to three papers already, and their legal writing professors think they need some help beyond the grading process. I am happy to help, but I wonder if I am doing these students a disservice at times. What if my style of writing and “rules of citation” are different from their professors'?  And my understanding of the law—since each legal writing professor has a different issue in a different jurisdiction—may be quite limited.

Frankly, I feel like an idiot if all my advice boils down to “Well, we’ve made a list of questions for your legal writing professor. Let’s check with him and then get back to this paper when we have some answers….”

I do have a copy of each professor’s assignment and a “confidential” outline that incorporates the case law, but I have not been to class, and the assignments inevitably evolve over time. Often I hear, “Oh, we’re not supposed to cover that anymore,” or “She said we don’t need to cite that way.”  Because I am not grading the paper, I always say to do it the professor's way rather than mine.

I am in a situation where I basically must trust the students to be honest with me, and sometimes I find that I have been duped. And to what end?  It is a lot like fabricating things to tell your therapist. Why would you tell me that your writing professor is okay with something when it is not true?

Granted, there are students who truly believe what they are telling me, and my cautious “That doesn’t sound right” will prompt them to double check. But often there are students who take advantage of my secondary position and tell me things that are not accurate. It makes me feel like Grandma. You know how it is: “Mommy always lets me eat candy for breakfast, and Daddy lets me use his chain saw all by myself.”  Gee, that doesn’t sound right, but who am I to argue?

It gets frustrating after a while. I have had students come back to me angry (really, really angry!) after my advice turned out to be incorrect in the context of a particular professor's particular assignment. I have also had writing professors gently chide me for not catching things, when in fact I did catch them and did point them out to the student as suspicious only to be told by the student that they were allowed.

So where does all this leave me? On the way home to make some chicken soup. (ezs)

Legal Writing & Academic Support

In a recent article in the Cleveland State Law Review, Professor Dionne L. Koller, who directs the Academic Achievement Program at University of Maryland School of Law, addresses the relationship between Legal Writing programs and Academic Support programs.

"It is often assumed," Professor Koller writes, "that legal writing and academic support go hand-in-hand. As a result, little thought may go into the ways that a legal writing course may actually hinder a law school's academic support mission."

The article (Legal Writing and Academic Support: Timing is Everything, 53 Clev. St. L. Rev. 51) provides a thorough analysis of the functions of both programs, and suggests how they may complement (or not) each other.

For example, although many of us in Academic Support offices believe that our best source of "struggling student" referrals will be the Legal Writing department, it ain't necessarily so.  Drawing from her own experience, and from observations by Professor Herb Ramy (Academic Support at Suffolk University Law School), Professor Koller writes, "... while the legal writing course may serve as an important additional identification tool when used in conjunction with other predictors, performance in the course is unreliable as the primary indicator of the need for academic support."

After mentioning some of the downsides of too close a relationship, or dependency, between legal writing and academic support, Professor Koller then proposes a legal writing course as a model for delivery of academic support.  Odd?  Not so fast.  What she recommends is an upper-level legal writing class as a vehicle for post-wunnelle support.

The article describes the program at the University of Maryland in great detail.  "Students in an upper-level legal writing course can practice their emerging analytical skills with smaller, 'bite-size' writing assignments on the issues presented by the problem that build up to the final written product," she explains, as one of the many valuable aspects of combining upper-level writing with essential analytical training in the second year of law school.

Professor Koller explains that the "...upper-level legal writing course must incorporate elements of learning theory and academic support practice," in order to "...provide a meaningful legal writing opportunity to ... [struggling] students."  (djt)

Message from Natt: Learning Curve

Hello ASPers,

I hope that your fall semester is going well.  It was great seeing many of you in June at the LSAC National Academic Assistance Training Workshop in Las Vegas.

This fall, I would like to publish another issue of The Learning Curve, the newsletter of the AALS Section on Academic Support.  I encourage you to submit articles on topics in the field of Academic Support.  For instance, I welcome articles on current research projects in the ASP community and articles on particular ASP insights from those in the field.  The newsletter is a rather informal publication and is a great vehicle for ASPers to discuss their current research interests or other noteworthy topics.

Several participants at the LSAC Workshop told me how they appreciate the
newsletter and the insights provided in the articles.

Short articles (i.e., from a few paragraphs to a few pages) are preferred, but the newsletter is published electronically, so we may be able to accommodate longer submissions.  Please don't hesitate to contact me if you have any questions about whether you should submit a particular piece.

Attached in the last issue (spring 2005); you can access previous editions of the newsletter at the ASP website: http://www.law.umkc.edu/aals-asp.htm. (Follow the links to The Learning Curve.)

Please e-mail me your submissions by FRIDAY, NOVEMBER 18; I would like to publish an issue in December.

Again, please contact me if you have any questions.  I received some excellent contributions for our last issue, and I look forward to receiving your submissions this time.

Thanks, Natt Gantt
Editor, The Learning Curve
Associate Professor and Director of Academic Success
Regent University School of Law
757-226-4852  (djt)

An Online Legal Writing Resource

Introduction to Basic Legal Citation by Professor Peter W. Martin.

This work first appeared in 1993, and was most recently revised on July 11, 2003.

This downloadable student resource includes the whys (pronounced "wh-eyes") and hows of citation, is loaded with explanations and examples, and is "accessible" to beginning students.

For example, one of the first questions many new students ask ("What degree of mastery of this language should one strive for – as a student, legal assistant, or lawyer?") is answered directly and clearly.

Consider the source: Peter W. Martin is the Jane M.G. Foster Professor of Law at Cornell Law School where he has been a member of the faculty since 1971 and was dean from 1980 to 1988. Professor Martin is a past president of the Center for Computer Assisted Legal Instruction and past chair of the Association of American Law Schools Section of Law and Computers.

Would your first-year students benefit from this resource?  (djt)