Tuesday, December 6, 2011

Essay Exam Answering Tip #120611 - Memorize

Last month, Professor Jarmon wrote a piece about the importance of memorization for earning good grades.  What she wrote is one-hundred percent accurate (of course!).   Note the two steps she recommends:

  1. Memorize the rules, exceptions to rules, methodologies, policy arguments, and so forth.
  2. Go beyond memorization.

Many students do neither.  Too many concentrate on one to the exclusion of the other. 

Some professors erroneously tell students that “law school is not about memorization.”  I say “erroneously” because, as Professor Jarmon pointed out, law school IS about memorization … and so much more.  But for the moment, let’s just focus on grades – and for most courses, that means focusing on exams. 

In order to write a high-scoring essay exam answer, a student needs to employ many skills and strategies.  Cogent presentation, high level analysis, sophisticated legal reasoning … yes, these are critical capabilities when it comes to earning “A” grades.

But one cannot earn an “A” … or a “B” … without being able to spot the issues that the professor expects to see analyzed.  In order to find issues, one must “know” the law.  In the deeper sense, to “know” the law is to understand its background, variations, nuances, subtleties, and so on.  But in the fundamental sense, to “know” the law (in the context of exam-answering) is to be able to write a rule statement without actively thinking; to “know it by heart.” 

Before walking in to a Torts final exam, a student committed to earning the best grade he or she is capable of earning ought to have learned “by heart” at least each of the following:

  • As to each tort, a statement of every “rule” – meaning a sentence or more that includes every element that must be proven to result in a determination that the tort has been committed.
  • As to each affirmative defense, a statement of every “rule” – meaning a sentence or more that includes every element that must be proven to result in a determination that the defense is viable.
  • A definition of every element, including “tests” to determine if that element can be proven.

A schematic template for constructing an essay is, essentially, included within these three categories.  Here’s a partial example:

  • To prove negligence, a plaintiff must prove that the defendant owed a duty to all foreseeable plaintiffs, that the defendant breached this duty by not acting in accord with the standard of care, and that this breach caused the injury to plaintiff.
  • Duty. A plaintiff must prove that the defendant owed a duty to all foreseeable plaintiffs, that the defendant breached this duty by not acting in accord with the standard of care, and that this breach caused the injury to plaintiff.
  • Standard of care. The standard of care is the degree of prudence and caution required of an individual who is under a duty of care.
  • Breach of duty. A breach issue can be looked at from (at least) two different angles ...
  • Balancing test. Liability turns on whether the burden of adequate precautions is less than the probability of harm multiplied by the gravity of the resulting injury. B<PL. 
  • Negligence per se. The three essential criteria include: that plaintiff is a member of the class intended to be protected by the statute, that the type of injury which occurred is the type the statute was enacted to guard against, and the violation was not excused. 

But a student need not memorize these 214 words.  This works:

  • Negligence – duty, breach, standard of care, cause, damage.
  • Breach – balance, per se.  Etc.

Should a student “memorize by rote”?  Ideally, no. It’s unnecessary if a student has adequately prepared for each class, produced a personal course summary (outline), and answered dozens of short-answer (and longer) practice questions.  The repetitive use of the fundamental rules to resolve tough problems imbeds the elements into the memory for most.  But not all.  That’s why memory tools are important to many law students.  (More about that later.)

Another helpful item to add to the bullet-point list above (what to memorize) is this: a list of every issue studied.  This provides an excellent checklist for the student to quickly run through during the pre-writing stage of composing the essay answer.  How much rote memorization does this entail?  Not much.  (For an example of a Criminal Law checklist, go to this link, then scroll down to Criminal Law, Checklist.)

Students must remember that the “memorization” part – the learning by heart part – is only a small part of what must be done to score high on exams.  But if a student is not able to run through the elements of each intentional tort (for example) quickly, without pausing to try to recall specifics, issues will be missed.  Don't let that happen!

{This “tip” is one of a continuing series.  Law school academic professionals are authorized to use this material in their work however they choose – and law students who read these tips are encouraged to integrate them into their practice sessions. To see where this tip fits in the grand schema: Click here.} (djt)

December 6, 2011 in Advice, Writing | Permalink | Comments (0) | TrackBack (0)

Sunday, October 30, 2011

Essay Exam Answering Tip #103011 - Focus on Key Facts

“Legal problem solving — identifying and diagnosing problems and generating strategies and tactics to achieve client objectives — is a legally trained person’s most basic function. Most legal problem solving activity involves some legal analysis — combining law and facts to generate, justify, and assess a legal problem’s merits.” (Legal Services Practice Manual: Skills (2010) Link)

All lawsuits arise as a result of disputes involving facts. Our legal system revolves around resolving disputes through the application of rules of law to the facts of a case. Yes, trials and appeals are about “law,” but remember that the trial court judge, or the jury, is referred to as the “trier-of-fact.”  Determinations of facts are so important that the Bill of Rights guarantees that facts once decided by a jury are pretty much the last word.  The seventh amendment provides that, “...no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."  This clause forbids any court from reexamining or overturning any factual determinations made by a jury, unless the factual determinations are clearly erroneous.

The two major components of the dispute resolution process are the applicable law and the facts of the dispute.  In the professional practice of law, you will be sifting through the case file to identify which of the hundreds or thousands of facts produced by discovery (for example, witness statements, deposition transcripts, answers to interrogatories, photographs, and correspondence) are “key” facts.  Key facts are those facts  that are critical to the outcome of the case. A key fact is so essential that if it were changed, the outcome of the case might well be different.

In law school, you are practicing this skill of focusing on facts – in order for you to learn to assess legal problems, you must be able to find the important facts ... the key facts, the facts upon which the outcome of the issue in question depends. When writing an answer to a law school essay exam question, you must ferret out these salient facts from all the facts presented in the narrative. Think of them as keys that unlock point-scoring issue discussions.

But how?  Here are the basic steps to determining which facts are key facts.

  • Identify each claim possibly raised by the exam question.
  • State the rules that will be used to resolve each issue of each claim. These rules include the elements which need to be addressed in the discussion of each issue.
  • Pinpoint which facts in the question possibly relate to the elements of those issues.

This last step involves determining which facts may be legally significant. Legally significant facts might be, for example, that a tenant with an eviction notice has never been supplied with hot water; or that the shooter was an off-duty policeman; or that a party to a contract may have been a minor; or that the geographical distance between the provoking incident and the killing may have been long enough to provide adequate time for a reasonable person to “cool off” the heat of his passion.

After outlining your answer, read through the exam question one more time carefully and quickly (you should be quite familiar with the question by this time, so the reading can go much faster than it did the first time through). Make sure you have assigned all the facts presented in the hypothetical question (the exam) to some issue. If not, ask yourself if these facts suggest another issue, can be used to further explain an issue you already noted, or are merely "red herrings" (facts in the question which might lead you to an errant discussion). Then use this fact-rich outline as a roadmap for answering the question. Note that your outline need not include explanations of why facts are important – the detailed analysis comes in your answer. The outline is only your writing guide.

As for the outline, you may want to follow a traditional outline pattern (bullet points, hierarchies, mind-mapping, etc.) … or, to accent the fact-finding, you may want to think about a two-column approach. You can outline your answer using two separate columns. Specifically, you can list the issues in one column, and then note the facts that need to be discussed in relation to those rules in the column next to it. This method will allow you to match the issues or sub-issues of law with the facts of the question. Skimming through the question quickly (again) before actually writing the essay, you can quickly note if you have skipped over a fact.

Long before encountering exams, work on recognizing key facts.  Focus on key facts when you brief cases for class. Some students find that including basic fact patterns in their self-made course outlines – as illustrations of the rules that appear in the outlines – helps them think of the rules in situational terms.

Many years ago, when I was a little boy, fictional Los Angeles police Sergeant Joe Friday, hero of the “Dragnet” television series, used to say to witnesses he interviewed, "All we want are the facts." Well, there’s more to it than that when you’re trying to score high on a law school essay exam … but Sgt. Friday was zeroing in on one of the two essential components – you should too!

{This “tip” is one of a continuing series.  Law school academic professionals are authorized to use this material in their work however they choose – and law students who read these tips are encouraged to integrate them into their practice sessions. To see where this tip fits in the grand schema: Click here.} (djt)

October 30, 2011 in Advice, Exams - Theory, Writing | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 4, 2011

Essay Exam Answering Tip #10411 - Avoid Expository Writing

In law school, as well as in the practice of law, you will have many opportunities to demonstrate your skills at many types of writing. One type of writing you will need to use from time to time is expository writing. Expository writing is a rhetorical mode of writing in which the purpose of the author is to inform, explain, describe, or define his or her subject to the reader.

However, when answering law school essay exam questions, you are called upon to demonstrate a different type of writing. Exams are opportunities to show your professor your skills of resolving legal problems by identifying issues, stating concise rules that will be used to resolve the problems, then applying your analytical talents to reason to conclusions. That requires a departure from expository writing.

By way of example, in order to prove a negligence claim, a plaintiff must provide evidence of several elements, one of which is the existence of a “duty” on the part of the defendant to act with reasonable care in relation to the plaintiff. The following is unnecessary in an essay response:

“Duty” can serve as a touchstone when trying to understand the essence of the concept of negligence. The notion of duty appears to be a universal keystone in legal systems throughout the world. In civilized societies, all human action is conformable to the law, which members of each society are required to obey. Duty may be obliged by law or by contract. When imposed by law, a duty is an obligation requiring the actor to conform to a certain standard of conduct for protection of others against unreasonable risks. The word “duty” is used throughout the Restatement of Torts to denote the fact that the actor is required to conduct himself in a particular manner; if he does not do so he runs the risk of becoming subject to liability to another to whom the duty is owed for any injury sustained by such other, of which that actor’s conduct is an actual and proximate cause. 

From an essay-writing standpoint (outside of law school) this may be a fine paragraph. Including it in an expository writing could be helpful. Although introductory explanations, historical justifications, moral discussions, and segue paragraphs tend to round out good collegiate expository writing, these are not hallmarks of good law school essay exam writing.

{This “tip” is one of a continuing series.  Law school academic professionals are authorized to use this material in their work however they choose – and law students who read these tips are encouraged to integrate them into their practice sessions. To see where this tip fits in the grand schema: Click here.} (djt)

October 4, 2011 in Advice, Writing | Permalink | Comments (0) | TrackBack (0)

Monday, September 26, 2011

Essay Exam Answering Tip #92611 – Begging the Question

When grading exam answers, professors reward logical, persuasive presentations. Resolving issues using logical fallacies earns no points.

One pitfall to avoid is the use of a circular argument.  This is also known as “begging the question." This fallacy occurs when one assumes the truth of what one is attempting to prove in the very effort to prove it. In other words, an argument is fallacious when the conclusion lies buried in the premise(s) used to reach that conclusion. Question-begging arguments often mask themselves in clever rhetoric. They can be easy to miss because they often sound good.

Example: “The Supreme Court’s power of judicial review is inherently undemocratic. When unelected judges reign supreme in the exposition of the Constitution, it cannot be said that we have a government ‘of the people, by the people, and for the people.’”

Explanation: The writer is assuming the truth of what she is trying to prove in the very effort to prove it. If you look at these two sentences closely, you will see that they are essentially paraphrases of one another. Because the second sentence is longer and more complex, it tends to trick us into thinking that it is a logically distinct idea — but it is not.

This example if from Neal Ramee’s Logic and Legal Reasoning: A Guide for Law Students, in which Mr. Ramee correctly explains, “Learning how to spot and avoid such logical fallacies can enormously strengthen your legal writing and advocacy by helping you adhere to the ‘pristine logic’ of correct syllogistic reasoning.”  (Recommendation: read Mr. Ramee’s 10-page “guide.”)

Begging the question — from the Latin petitio principii — arises all too often in exam answers. If you write, “The contract is enforceable because it fulfills the validity requirements” or, “Defendant is liable for negligence because of his negligent conduct,” you’re begging the question. Each of these statements lacks the point-scoring analysis your professor is looking for.  The Contracts essay answer needs to state the elements that establish validity (or enforceability) and to show how the facts in the narrative fulfill the requirements. The Torts answer ought to specify precisely what the negligent conduct is and the rationale behind the conclusion that this conduct is negligent.

Remember that stating the “right” answer (for example, that a party was negligent) is not what scores the points in an essay answer — rather, points are scored by your logical, organized interweaving of the facts with the elements of the law in a compelling analytical presentation.

{This “tip” is one of a continuing series.  Law school academic professionals are authorized to use this material in their work however they choose — and law students who read these tips are encouraged to integrate them into their practice sessions. To see where this tip fits in the grand schema: Click here.} (djt) 

September 26, 2011 in Advice, Writing | Permalink | Comments (1) | TrackBack (0)

Monday, September 12, 2011

Essay Exam Answering Tip #91311 – Spot the Issues

To score high on law school essay exams, you need to spot as many issues as possible.  They lurk in the narrative.  If you can't spot the issues on an exam you won't score the points.

Issue-spotting is the most fundamental activity in the process of writing an answer to a law school essay exam question. Those students who spend their exam time spotting issues then follow up by organizing their answers, formulating their legal analysis of the issue they have discovered, and then writing the answer in a way that demonstrates their lawyer-like thinking will get the best grades.

Consider making a mental checklist of the issues that continually arise in (for example) Contracts essay exams, then scrutinizing each question/answer by running through your checklist. Some students actually memorize a checklist of possible issues and scribble that down (quite abbreviated) after the test period begins … others use a “mental” checklist. This works for many students … think about it!

If you use the “checklist” approach, remember that it’s just for comparison against your answer outline. Don’t expect to write about everything on the checklist! Selecting and divining the right issues, and only the right issues, for discussion on an exam has its analog in narrowing and selecting the right issues to research and prepare for when you will be advising clients, or when you prepare for oral arguments in court.  Clients have neither the time nor the money to pay for unnecessary research.  Judges are even more demanding than clients! (In other words … try to find all the issues, but only the issues!)

To improve in the area of spotting issues, search through the question for facts that either side might use to fashion an argument that might help that side – then, if the argument is untenable, explain why. Here's a hint: as a general rule-of-thumb, most facts you find in the narrative can be used to support or attack a position.

On the other hand, if the argument would be merely specious (superficially attractive but actually of no real interest or value) it ought not to be raised. This is a decision a lawyer has to make in real life, asking herself, “Do I raise this as an issue, or is it too far-fetched?”  Likewise, it is a decision a law student needs to make in composing an answer to an essay question. But the law student has an advantage: most professors adhere to the policy that no points are taken off for including as an issue something that is not an issue. (Keep in mind, however, that you need to be prudent in this regard, because spending time writing about “non-issues” uses up time which would be better spent earning points by discussing actual issues.  Also, be sure to find out from your professor if this is the grading policy.)

Separating the actual issues from non-issues is a skill that you will pick up as you proceed through law school. If it seems difficult, don’t worry – you are on the road to learning this skill now, and as you answer more essays you will become better and better at it!

{This “tip” is one of a continuing series.  Law school academic professionals are authorized to use this material in their work however they choose – and law students who read these tips are encouraged to integrate them into their practice sessions. To see where this tip fits in the grand schema: Click here.} (djt)

September 12, 2011 in Advice, Exams - Theory, Writing | Permalink | Comments (0) | TrackBack (0)

Friday, September 9, 2011

Essay Exam Answering Tip #9911 – Write with Concision

Vigorous writing is concise. A sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts. This requires not that the writer make all his sentences short, or that he avoid all detail and treat his subject only in outline, but that every word tell.  William Strunk and E. B. White

Mr. Strunk and Mr. White got it!  Often, less is more, and simple is best.  I like the phrase, "...every word tell."  When you write your exam answer, every word ought to be a point-scoring word.

Example: When you're answering a Contracts essay exam question, there's no need to define Contract. That's right.  Just as there is no need to define “Tort” or “Crime” in Tort or Criminal Law essay answers, there is no need to define “Contract.” Simply begin with the first issue.  That's because your "audience" as you write an exam is not a "know-nothing," but rather, a (fictional) peer who is familiar with the facts of your case (the question you're answering) and the basics of the law ... but she needs a refresher on the particulars.

So writing that "...a contract is an agreement between parties that ..." (etc.) scores no points; whereas, it is important to state the applicable portions of the statute of frauds before using that as a defense.

Likewise, there's no reason to discuss matters that are not germane to the call of the question.  One mistake is to write about what the defendant should have done instead of what he did do, then explain how things would have turned out differently for the parties if that were to have occurred.  In other words, changing the facts of the hypothetical and writing about the issues that arise under the altered facts.  That's a no-no.  As in "no points."  It wastes your time.

Concision reigns.

{This “tip” is one of a continuing series.  Law school academic professionals are authorized to use this material in their work however they choose – and law students who read these tips are encouraged to integrate them into their practice sessions. To see where this tip fits in the grand schema: Click here.} (djt)

September 9, 2011 in Advice, Exams - Theory, Writing | Permalink | Comments (1) | TrackBack (0)

Thursday, August 25, 2011

Essay Exam Answering Tip #82511 – Writing for your audience.

If you were to write a book for youngsters about how to play baseball, or an adult-oriented romance novel, your “audience” would be easy to identify.  In the first example, you’d be writing for an age group between 7 and 11; the readers would all be interested in baseball; and they’d be, let’s say, beginner-to-intermediate level of capability and sophistication in the sport.  In the second example, you could Google the demographics for who buys romance novels, and get a pretty good idea of who might purchase your book.  Audience identification is critical whenever you write—and that’s the case when you write answers to law school essay exam questions as well.

When you write the answer to a law school essay exam question, your audience is fictional.  Think of your audience (reader) as an informed attorney or a colleague (law student) who is quite familiar with the nature and purpose of law in general; who has read the fact pattern; and who has a passing familiarity with the law of the subject (torts or contracts, for example), but needs to be reminded of the precise rules of law. Then proceed as if you are explaining the situation to that person.

For example, that person would not need to read that often hunting knives have sharp edges, that if a person is the manager of a grocery store, one can assume that she is the person who ought to be in charge of the store, or that there is a difference between tortious battery and criminal battery in that the latter is punishable by imprisonment. 

Also, because the fictional reader has read the fact pattern, there’s no need to repeat sections or sentences of the question.  In other words, if the question includes, “When Mr. Slocum walked into the airport he noticed the aroma of something burning—and this immediately caused him concern” … then there is no need to include in your essay, “When Mr. Slocum walked into the airport he noticed the aroma of something burning—and this immediately caused him concern.”  (Rather, you could refer to Slocum’s location, refer to the aroma, or refer to Slocum’s concern, if they are key facts in your argument—no need to repeat what the reader has just read in the question.)

Although each step of your legal analysis ought to be in the essay, it is important not to waste your limited time by explaining what your audience can be expected to know.

Now let’s look at the “real” audience: your professor. Always write with your professor in mind. In general, hallmarks of an “A” grade answer include: identification of all issues, significant attention to “grey areas,” incorporation of higher-level argument techniques (example: using the “slippery slope” argument), integration of the legal principles and facts of the hypothetical with common sense notions, and policy support for a position taken.

However, professors differ in what they consider “A” grade material. Therefore, it is very important to obtain not only the old exam questions your professor has filed, but also—if available—her examples of quality answers. You should study these answers carefully, for there you will find which qualities your professor rewards with high grades.

You ought to also discuss with your professors what they look for in exam answers during office visits.  You will also get quite a bit of this information during class—be sure to put that in your notes! Do this with each of your professors to learn what he or she expects on a real exam. Whatever you discover, that’s what to practice!  Then incorporate your professors’ suggestions into your practice exam answers. 

Audience matters in everything you write … and the audience you write for when you compose answers to law school essay exam questions is likely to be a determinative factor in the grade you receive!

{This “tip” is one of a continuing series.  Law school academic professionals are authorized to use this material in their work however they choose – and law students who read these tips are encouraged to integrate them into their practice sessions. To see where this tip fits in the grand schema: Click here.} (djt)

August 25, 2011 in Advice, Exams - Theory, Writing | Permalink | Comments (0) | TrackBack (0)

Monday, August 22, 2011

Essay Exam Answering Tip #82211 – What “conclusory” means.

Professors and academic support professionals warn against writing answers – or addressing issues – in a way that is “conclusory.” Let’s take a look at what “conclusory” means.

Law examination answers that do not supply the explanatory information detailing how each step of the argument is arrived at are “conclusory.” That is, they recite conclusions without stating supportive analysis. A display of the thought process leading to every conclusion is essential in a law examination answer.

When you enter the professional practice, judges, lawyers, and clients will be asking, “How did you reach that conclusion?” Throughout law school, your professors will expect you to respond to that latent question in every class session and on every examination. The ability to conclude is not what “thinking like a lawyer” is about—rather, you are developing the ability to persuade another that the conclusion you have reached is supportable by application of rules of law to a set of facts.

To score the most points on each issue, the essay ought to specify the issue, indicate which rule (or set of rules) a lawyer would employ to resolve the issue, articulate an analysis of how the facts of this hypothetical case are affected by application of the rule, and reason to a solid conclusion.

Lawyerly analysis, in its most fundamental sense, boils down to an interweaving of the facts presented in the hypothetical, with the law you have identified. So to score more exam points, avoid conclusory statements—instead work on your analytical skills. {Where this tip fits in the grand schema: Click here.} (djt)

August 22, 2011 in Advice, Exams - Theory, Writing | Permalink | Comments (0) | TrackBack (0)

Saturday, August 20, 2011

Essay Exam Answering Tip #82011 – What an “issue” is.

Let’s take a look at what an “issue” is, within the context of answering law school essay exams. An issue is usually a question the court will be called upon to answer. Sometimes “major” issues, like whether a defendant is liable for negligence, are referred to as “ultimate questions” in the case – whereas the elemental questions are the determinative issues … the questions which, when answered, will determine the answer to the ultimate question.

For example, a major issue, or ultimate question in a Torts exam may be whether the defendant’s actions or omissions constitute the tort of negligence. The elemental issues which the trier of fact will be called upon to determine include whether the plaintiff can prove each of the elements of negligence: duty owed to the plaintiff, breach of that duty, causation, and damage. 

Many issues include sub-issues.  For example, when one finds a negligence issue, often it will require a thorough analysis of breach of duty, including a discussion based on the balancing of the gravity of harm against the burden on the defendant to have acted differently, and also including attention to the utility of the defendant’s allegedly negligent conduct.

To help identify issues and sub-issues, carefully read the facts to determine which elements of each rule ought to be discussed. As to issues, remember that it’s important to not only name them, but to explain how they arise in the circumstances set forth in the essay question.

After each issue is named, state the applicable rule that will be used to resolve the issue; then engage in discussion and analysis to reach a conclusion before moving to the next issue or sub-issue.

{Where this tip fits in the grand schema: Click here.} (djt)

August 20, 2011 in Advice, Exams - Theory, Writing | Permalink | Comments (0) | TrackBack (0)

Monday, June 20, 2011

Guest column with another tip for 1L students

Our Guest Column for today is a posting by Barbara McFarland, Director for the Office of Student Success Initiatives at Chase College of Law, Northern Kentucky University.  Barbara has suggested an excellent tip for first-year law students and included an exercise to help them apply it.  Thank you for sharing your insight and expertise with all of us, Barbara!  (Amy Jarmon) 

One More Tip:  Remedy Writing Problems

Dr. Amy Jarmon’s May 19th blog post provided ten excellent pieces of advice for incoming students.  She is kindly allowing me to add an eleventh:  Remedy writing problems before you begin law school.

Even students who have always been good writers struggle to master the intricacies of legal writing.  Students who are not good writers do not have time during first semester to learn the basic rules of writing good English prose, punctuating properly, and editing for clarity and concision.  While we can say that our students should have mastered the mechanics during undergrad, or even earlier, the sad truth is that many of them have not.  They have studiously avoided any class that required them to write anything more than a name on a scantron.  Or, if they have done any writing, it was assessed by teachers and professors more interested in commenting on the substance than the form.

When my law school offered a voluntary writing course in the week before classes began last August, almost half of the incoming full-time class attended.  The improvements achieved during that one-week class, as measured by pre- and post-tests, were impressive.  A second post-test given at the end of the first year of law study indicates that some, but not all, of the gains made during that week were retained nine months later.  More number crunching is needed to confirm this initial impression, but the good news is that it’s not too late for our incoming students to learn the rules needed to improve their writing.

How they go about that task is up to them, of course.  They could take a business or technical writing class at a local college or university this summer, beg help from the high school English teacher who tried to teach them those rules back in the ninth grade, or just buy a book.  Grammar and writing books abound; any used bookstore will have inexpensive texts that will serve the purpose.  Online grammar guides are also plentiful.

For a simple technique that students may find helpful, suggest this exercise.

_____________________________________________________________________

Often, mechanical errors are much easier to find in our own writing after the passage of time.  Pull up a document you wrote some time ago, read it critically, and use it to diagnose areas of weakness in your writing.  

First, double space after each period and review each sentence in isolation:

  • Is each group of words between the capitalized first letter and the end punctuation a complete sentence?
  • Do the subject and verb match in number and make sense together?
  • Does every verb that requires an object have one?
  • Are modifiers close to the words they modify?
  • Does every pronoun have an antecedent, and do they match in number?
  • Are the sentences typically very long, containing two or three thoughts that could be separated?
  • Are the sentences typically very short, dividing ideas that could more effectively be communicated in compound or complex sentences?
  • Does the sentence structure vary sufficiently?
  • Does every word of each sentence convey the precise meaning intended?
  • If you read the sentence aloud with great inflection and pregnant pauses, does the punctuation seem appropriate, necessary, and correct?

If the answer to any of these questions is “no,” chart the errors to identify patterns and problem areas. Once you have identified your errors, learn how to fix them by reading in a grammar book or online service.  Rewrite each sentence to fix the sentence-level problems.

Then reunite all the sentences for a particular paragraph and review each paragraph in turn:

  • Is the first sentence a topic sentence that accurately portrays the remainder of the paragraph?
  • Is every sentence in the paragraph related to the stated topic?
  • Do the remaining sentences present ideas or information in a logical order for the purpose of the paragraph?
  • Are relationships between sentences clearly made by references and other transitional devices?
  • Do the remaining sentences develop the stated topic as completely as needed?

If not, identify, chart, and remedy errors.  Rewrite each paragraph into a coherent and correct whole.

When you finish reviewing all of the paragraphs in a particular section of the document, look at the entire section:

  • Do transitional devices between the paragraphs develop the overall topic or theme of the section?
  • Are the paragraphs in a logical order, facilitating the development and exposition of that topic or theme?
  • Are the paragraphs typically overly long, too short, or a good mix of lengths?
  • Are one- or two-sentence paragraphs used only sparingly and for emphasis?

Again, identify, chart, and remedy errors.  Follow the same procedure with as many written documents as possible until you can identify and eliminate errors accurately and efficiently.  If you can write and punctuate good sentences and paragraphs, you are more likely to successfully adapt to the forms and structures of legal writing. 

Enjoy the rest of your summer, and I will look forward to meeting you in August. ___________________________________________________________________

Although this exercise was created specifically for students who have not yet started law school, it can be easily modified for use with current law students.  Unfortunately, many law students are taken by surprise when we expect them to write perfect English prose.  Even those with good mechanics are astonished that their writing style, honed by years of trying to write enough to meet the minimum page requirements of undergraduate papers, must be simplified, clarified, and slashed to meet the expectations of their legal writing professor.

We do our students a service by preparing them for legal writing, in addition to warning them about other rigors and oddities of law study. Recommending that they take time now to remedy writing problems is another step toward the goal of informing and educating our incoming students even before they reach our classrooms.

 

 

June 20, 2011 in Advice, Guest Column, Writing | Permalink | Comments (0) | TrackBack (0)

Saturday, May 14, 2011

A 3L's perspective on relationships with professors

I would like to give a hat tip to Sue Liemer at Southern Illinois University for bringing the following blog post to our attention on the Legal Writing Prof Blog.  Although the student's posting on Beyond Hearsay is specifically related to legal writing professors, I think it has merit for relationships with all doctrinal professors and ASP'ers.

J. Richard Lindsay, a 3L at Southern Illinois, writes about learning humility as a law student writer so that he could learn from his legal writing professor instead of seeing his professor as an enemy.  He writes about professors becoming allies when law students are able to get past the hurt and frustration of criticism of their work.  The link is here: Uncovering Secret Allies: How Humility Can Lead to Great Relationships.  (Amy Jarmon)

 

May 14, 2011 in Advice, Miscellany, Writing | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 13, 2011

COMPLETE THE SURVEY!

If you have not completed the ASP survey sent by John Mollenkamp, please take the time to do so now. Or, as they say, the beatings (or harassing emails) will continue until morale improves (or until all ASPer's have responded to the survey).

I have made a plea over the listserv, as have a number of my illustrious colleagues, to finish the survey for yourself. I stand by that plea. But if you are more civic-minded, please complete the survey for all of us. We hear lots and lots about the growth of empirical legal studies, but ASP has no empirical data on the state of our own existence at other schools. Right now, we have no hard data on what we are, who we are, or what we do for students. If we want to prove how important we are to student success, we need to know what is going on at other schools as well as our own.

So please, respond to the survey. If you should have received a link to the survey, but did not receive one, please contact Ruth McKinney at ramckinn@email.unc.edu.

For those of you in the Northeast...finish the survey now because the weather is FINALLY! looking good. The sooner you get the (very quick) survey out of the way you can go and play outside. (RCF)

April 13, 2011 in Current Affairs, Miscellany, News, Writing | Permalink | Comments (0) | TrackBack (0)

Friday, April 1, 2011

Do students know what is good for them? Do they care?

The ABA Journal and the National Law Journal reported on an law review article that studied laptop use among law students. The students self-reported their laptop use in class, including their feelings on whether laptops aid their learning. Students overwhelmingly reported using laptops, and overwhelmingly reported that they used  thier laptops to "goof off" during class. I am going to bypass the issues that have been argued in other blogs (should laptops be banned in class, are professors failing to teach their students). Without a study that tracks laptop use in class and student grades, I am left to wonder, do students actually know what is good for them? If something feels good and it is satisfying, people will report that the activity helps them. Here, students reported laptops aided their learning, but that really means they find laptop use satisfying. What I want to see is an empirical study of the grades and attitudes of students who use laptops, comparing students who hand-write their class notes, students who use a laptop but do not goof off, and students who use a laptop and admit to goofing off in class.  I would like to see their grade trajectory throughout law school, as well as their attitudes about goofing off, if it does have an impact on their grades.  This study has yet to be performed (to my knowledge). 

There are so many things we could learn from a study that tracks laptops and grades. It would be a wonderful diagnostic tool in ASP; having this information to share with students would help when students come to our offices to discuss lackluster performance. Assuming the data demonstrated a correlation between goofing off on a laptop in class and poor grades, I would have a better idea of what is behind less-than-stellar performance. I would approach a student who does not "goof off" in class, yet struggles, quite differently from a student who uses a laptop and plays during class while telling me that the laptop helps them learn.  Right now, I don't make that assumption because I don't know if laptop use in class has a correlation with grades. I know playing on a laptop is rude and disrespectful, to me and to peers, but unless I have hard data showing a correlation between laptop use and grades, students are less likely to give up the laptop because of poor law school performance.

There is another issue hidden in laptop use that extends beyond exam performance; if students knew it had an impact on grades, would  they care? I think this brings up issues about how we teach and student engagement in class. It also implies issues with motivation and depression. I know most of the pre-law students I work with are excited about law school, and motivated to do their best. If those same students become apathetic about their own performance, choosing to use a laptop even if it hurts their grades, we need a more serious examination of student mental and emotional health during their 1L year. Thanks to the amazing work of Larry Kriegar and Ken Sheldon, we know law school has a deleterious effect on law student mental health. But does depression extend to self-defeating behaviors, or is the effect limited to personal and professional outlook?

I wish we had more people doing empirical work on the behavior, motivation, and learning occuring in law schools. Larry and Ken are prolific, but we need more people doing more of this work. I think this is a problem resulting, in part, from the lack of research time and funds that go to law school professionals that work in legal writing and academic services. The people with the most time in the trenches with students, who would be best able to perform a large-scale empirical study, are the same people who are non-tenure track, and have least access to research funding. I am hoping some intrepid souls take on this challenge and produce more scholarship that relates directly to student academic success and health.

(RCF)

April 1, 2011 in Current Affairs, Exams - Studying, News, Writing | Permalink | Comments (0) | TrackBack (0)

Monday, February 7, 2011

Writing and Running

This is a call to everyone in ASP who has something to say, but is afraid to write. Most of us don't need to write for our job. However, if you don't write, it's almost impossible to move past "staff" status. There aren't as many writing mentors in ASP as there are doctrinal folks who can help junior faculty while they are writing. So I am writing about my writing process to let new ASPer's know that it is not them; writing is tough. But it's worth it.

I have been working on a major writing project for the last couple of months. I finally finished this weekend; I had to do the bulk of the writing on days off and weekends because my workload was too heavy to allow much writing 9-5. Finishing a writing project is both a relief and filled with anxiety. It is incredibly satisfying to be done, but then comes the intense worry that it's not good enough, a citation is missing,  or that I forgot a topic essential to the discussion. One of the reasons I don't write as much as I should (outside of this blog) is due to the anxiety it provokes when I finish. Unless I have a deadline, I will never stop second-guessing my work.

Writing is a lot like running. I am a long-time distance runner (almost 20 years!). Even for the best writers, it's sometimes a grind. In both writing and running, it's hardest when you are out-of-shape. We generally don't think of needing to be "in shape" to write, but writing makes writing easier and more fluid. This does feel a little unfair, because when you most need to feel good about writing (or running) is when you are getting back after a long break. But that is when it is hardest and most painful.

For nearly two months I resorted to exhaustive, probably unnecessary, research because writing was too painful. I could not get more than a paragraph or two on a page, and I knew I needed 10,000-15,000 words. It seemed insurmountable because I had not written that much in years.  I knew I could do it, but I could not remember how I did it, what my process was, what I did in terms of a timeline. But after two months, I found that my one-two paragraphs while researching out came to about 3000 words, and suddenly I had about 20% of the project done. And it didn't seem like I could never do it. When I would come back to running after taking time off due to illness or injury, it would seem like I could never get over the 1-3 mile range. And then, after a couple of months, I could hit 5 miles without stopping. And at five miles, a half marathon doesn't seem so unreasonable after all.

The second hardest time is when you get writer's block, or in running, when you plateau. This usually happens when you have been at it for a while. You become acclimated to the process and you stop responding. Nothing you do seems to make it better. This tends to happen at the worst possible time; when you need to get a project finished, but your mind is empty, or when you are training for a major race, and your legs don't want to cooperate. The experts say beware of overtraining, but work through it. It will break. This was were I was at about two weeks ago. I desperately needed to get past the 5000 word mark, but everything I wrote was terrible. None of it fit with the theme. I couldn't transition between topics. Every word was painful. But I knew I had two weeks, so I worked through it, and it did come together. But during that period, I probably erased more than I wrote. Through erasing and rethinking, I came out with a much stronger theme.

The last painful period for me is finishing up. As I said at the start, I never want to finish because I am afraid it's not good enough or dreadfully flawed. The easiest way for me to get over this is to send it out to be proofread. As soon as I hit "send" I think of five topics I needed to cover but forgot while I was writing. I would never remember what I needed to add if I didn't hit send. The anxiety of someone else reading my work, and finding it lacking, produces the adrenaline to put it all together. Quite honestly, what I send out to be proofread usually is lacking. It's not my best work, and it's not even very good work. In running, this is usually the period when I need training partners to keep going. I am in a pretty bad state about two-three weeks before a race, and I need companions to keep me going. I will not walk unless injured, so even when I hate running, I keep going because I am too proud to be the person who  slows down the group.

In that last rush of adrenaline, I can usually knock out a substantial portion of the paper. The fear won't go away until it's published. In this way writing is still like running...you cross the finish line, and you immediately start planning your next race. In my case, I wrote three pages of a law review article while finishing my last work. Writing and researching made me realize how much more there is to say on the topic. So I started with just a heading. Then I jotted some notes about where I wanted to go with the topic. The I took a break from the major project and put in several more topic headings. There was no fear, no anxiety, as there is when I start writing after a long break. It was smooth. (RCF)

February 7, 2011 in Advice, Encouragement & Inspiration, Publishing, Writing | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 29, 2009

Help for Students Turning their Legal Writing Papers into Writing Samples

My colleague, Herb Ramy, (DirectorAcademic Support Program at Suffolk University Law School) has recently made his locally famous paper on "Creating a Writing Sample" available on SSRN.  This is a great resource for students who are trying to convert their legal writing (either from their first year legal writing course or other employment) into a (hopefully) job-winning writing sample.  Here is the link to Herb's ssrn page, the piece is called "Creating a Writing Sample":

http://ssrn.com/author=775136

(ezs)

April 29, 2009 in Writing | Permalink | Comments (0) | TrackBack (0)

Saturday, May 10, 2008

Helping Students Edit Their Writing Effectively

Some of my colleagues at UMKC School of Law have created a "self-editing" device to help students with their writing.  Prof. Wanda Temm describes it below and asks for your help in improving it. (dbw)

Colleagues:

Like many of us, I have just emerged from another round of critiquing briefs.  I find one of the most frustrating things in critiquing papers is finding basic mistakes or just typos that the drafter should have caught with a basic proofread.   With over-reliance on spell-check and grammar-check, proofreading skills are not where they should be in many of our students. That's certainly not news to all of you.      

Frustrated that our pleas to "please proofread more carefully" go unnoticed, my colleagues and I seek to instill ownership of proofreading by requiring our students to complete a self-edit certification.  Our aim is to break proofreading down into concrete steps for our students.  The certification was originally designed by my colleagues, Professors Nancy Levit and Allen Rostron, for use with law review notes and comments.  I am now incorporating into the first year legal writing program and would like your help.

Our draft certification is now available on SSRN at http://ssrn.com/abstract=1130308.  Please take a look at let us know how we can improve this work in progress.

Looking forward to a few critiquing-free days,

Wanda M. Temm
Clinical Professor of Law
Director of Legal Writing
Director of Bar Services
University of Missouri-Kansas City
School of Law
5100 Rockhill Road
Kansas City, Missouri 64105
816-235-5311
temmw@umkc.edu

May 10, 2008 in Writing | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 24, 2007

A Practical Article on Brief Writing

You may be interested in a new article designed to offer a succinct, straightforward guide to effective persuasive writing, with examples. In describing the article, author Sarah Ricks says that a common problem plaguing many briefs is the inability of writers to see their briefs from the point of view of "the busy judge or inexperienced law clerk."  The article suggests how to use the reader's perspective to avoid ten of the most common errors that weaken a brief's persuasive impact.

She and a practicing attorney, Jane L. Istvan, co-wrote the article, basing it on a series of CLE's the two taught.  The article is "Effective Brief Writing Despite High Volume Practice: Ten Misconceptions That Result in Bad Briefs," forthcoming in Toledo Law Review and available at SSRN: < http://ssrn.com/abstract=996907 > http://ssrn.com/abstract=996907.  (Dan Weddle)

July 24, 2007 in Writing | Permalink | Comments (0) | TrackBack (0)

Friday, February 23, 2007

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)

February 23, 2007 in Writing | Permalink | Comments (0) | TrackBack (0)

Friday, August 18, 2006

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)

August 18, 2006 in Advice, Miscellany, Writing | Permalink | Comments (0) | TrackBack (0)

Thursday, March 16, 2006

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)

March 16, 2006 in Writing | Permalink | Comments (0) | TrackBack (0)