Friday, December 17, 2010

New "skills" scholarship: "Making effective use of practitioners' briefs in the law school curriculum"

This article is authored by Widener Professor Anna P. Hemingway and can be found at 22 St. Thomas L. Rev. 417 (2010).  From the introduction:

Many law students attend school for three years and go on to graduate, pass the bar exam, and begin practicing law without ever reading court documents produced by practicing attorneys.  This happens because although law schools teach students how to write many of the documents that are produced for court, rarely do professors use these documents in the classroom to teach.  Instead, professors assign edited case opinions in text books for law students to read.

Case opinions are useful to teach students the law. They are, however, just end products, and consequently, show students only how a case concluded, not how it began or how it was argued or how it progressed through the legal system.  This lack of exposure to legal arguments can leave students with an incomplete understanding of the legal process.

Providing students with practitioners' briefs filed in cases they are studying enhances students' learning by exposing them to more legal methods and practice. Although practitioners' briefs could be introduced effectively throughout most of the law school curriculum, one course that would greatly benefit from their use is Legal Writing and Research. Most practicing lawyers depend heavily on their persuasive writing skills.  Consequently, most legal writing professors spend a great deal of time, often an entire semester, teaching law students how to write the basic types of persuasive documents that attorneys routinely file in court.  Professors do not, however, traditionally ever show students actual briefs that have been used in court.  The use of practitioners' briefs by law students is seen as harmful for many reasons. The pedagogical reason for making such briefs taboo arises from the fear that if students refer to these documents, they may not develop the ability to think and write independently. If the brief is well-reasoned and well-crafted, students will not have the opportunity to work through an analysis of the issues independently. On the other hand, if it is not well-reasoned or well-written, reading it is likely to hinder students in their efforts to analyze the legal issues presented.

The current state of technology, however, makes practitioners' briefs increasingly accessible to students.  Law school students today are quite adept at using the resources of the internet.  In addition, they now  routinely have free access to the major electronic legal research services, Westlaw and LexisNexis.  Many courts nowadays also provide free access to documents filed with them.  Expecting today's law students not to review practitioners' briefs when these forbidden materials are both so readily available and so obviously relevant to their assigned task, is becoming increasingly unrealistic.

Banning their use may also be disadvantageous to students.  An important skill possessed by all attorneys with strong research skills is the ability to locate the information most relevant to their assigned task and to know how to make use of it.  Pretending that practitioners' briefs addressing the issues assigned to students for analysis do not exist, or that they are not useful, does a disservice both to law students and to their future clients. The truth is that practitioners' briefs can be very helpful in learning the practice of law and attorneys in the practice of law often refer to them.  Practitioners' briefs can provide an understanding of how courts view certain arguments and thus provide insight into which arguments can work and which ones will probably not. This insight can be invaluable not only in crafting the practitioners' own arguments for the court, but also in helping students understand how to draft a winning argument.

This article argues that practitioners' briefs do have a place in the law school classroom. Part II of this article discusses the pedagogy behind using practitioners' briefs in the legal writing classroom.  It demonstrates how using practitioners' briefs enriches lesson plans, heightens interest in the classroom, and helps students gain a richer appreciation for lawyers' goals when they write as advocates. Part III presents some different ways of using practitioners' briefs to teach persuasive writing. It examines how the author has used practitioners' briefs to teach persuasive writing of the statement of facts, point headings and summary of the argument. Part IV discusses ways of using practitioners' briefs in classes other than legal writing and suggests that by introducing the briefs behind the appellate opinions students read, students ultimately gain a stronger understanding of legal process. Finally, the article concludes with a summary and a brief examination of potential pitfalls to avoid when using practitioners' briefs.


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