Friday, November 9, 2007
By Hillary Burgess, Adjunct Professor, Rutgers School of Law - Camden
A few weeks ago, the Tax Law Blog asked contributors to give Dean Chemerinsky advice about the single best idea to reform legal education. The responses have been posted on both the Tax Law Blog and the Law School Innovation blog. Professor Gordon Smith advised Dean Chemerinsky to eliminate legal writing programs along with other forms of what he deems mock lawyering skills (moot court, law review, and all other co-curriculars). You can read the advice here: http://taxprof.typepad.com/taxprof_blog/2007/09/gordon-smiths-a.html
While his idea to increase externship experience merits consideration, the notion of eliminating all co-curriculars and especially legal writing training is shocking (at least to someone who has a passion for making the legal community better writers). As a profession, lawyers are not the best writers and our legal writing courses are the only chance we have in the current system to influence the legal writing style for future lawyers. Clear communication is so critical to the practice of law, yet we don't do enough, in my opinion, to create good writers (though we are all working hard on that front!).
In fact, even with our current legal writing programs, our law school curriculum works against producing good legal writing. So many students learn by imitation, yet student's first exposure to legal writing is in the ancient cases that are a part of the first year curriculum. Students learn to refer to New York City as "vast wastelands known as the beach" (Pierson v. Post - the Rule of Capture fox case) or worse, to create fact patterns with all of the havoc and disorganization of Pennoyer v. Neff. Teaching legal writing is the only hope we have of combating our law students from learning how to "write like a lawyer" from these doctrinally crucial, yet extremely poorly written opinions.
Moreover, law is a fast-paced, time-is-money environment. Practicing lawyers do not have time (and probably don't have the inclination) to teach externs about good legal writing. Even if a few practicing attorneys did devote the time, there would be no standards for what was taught or how much of it was taught, much less a peer review selection process that ensured those teaching knew what constituted good writing. Moreover, after our current generation of legal-writing trained lawyers retired, the next generation would be taught only by people who received scattered tips on legal writing from this generation of lawyers.
My advice is just the opposite: make every class a writing class with both writing and doctrinal feedback. One of the most consistent complaints from law students is that there is no feedback in doctrinal courses, so students are left guessing what they did right and wrong on the exam. Did they have the law wrong or did they fail to identify an issue or did they just fail to communicate their understanding through bad writing. Granted, I have adopted the idea from my undergraduate institution, University of Chicago, where there was no college composition course because every class was expected to teach academic writing. And, granted, the faculty to student ratio there is 1:4 and the average class size is under 20. That said, when I've taught doctrinal courses to both pre-law and law students, with class sizes up to 60, I make every class a writing class with assignments (yes multiple) that focus their objectives on learning how to write better.
Even without making "every" class a writing class, we could require (or seriously urge) our faculty to provide more writing opportunities in class. We could also increase the writing requirements necessary to graduate and make writing classes smaller to allow faculty to devote much more time to developing lawyers as writers while not distracting from their other work. Perhaps we should even rethink the idea of simultaneously teaching first semester students doctrinal material and how to "think like a lawyer" and focus their first experience with law school solely on how to write and think like a lawyer, with doctrinal courses advancing the introduction on how to "think like a lawyer" with doctrinal material.
I'm just tossing around ideas here, but the point is: We need more writing courses, not fewer. More feedback on writing, not less. More opportunities for students to learn to write well, not fewer.