Sunday, March 21, 2010
The article is authored by Professor David Crump of the University of Houston Law School and can be found at 10 J. Law Soc'y 33 (2009). Among the top 10 "myths" are:
- That the study of lawyering strategies (sometimes called skills is intellectually inferior to the court-opinion method.
- That it does not matter whether the professor knows about the actual practice of the subject matter.
- That today's scholarship enhances law school teaching.
- That law school teaches legal ethics.
- That most law students don't need to study practice management.
- That law school teaches legal writing.
Most law schools require courses in legal writing during the first year. These courses may be titled differently and may be combined with other subjects. The course typically involves writing, and it may concentrate on expository writing, often of the kind that appears in a hypothetical memorandum. It is debatable, however, whether its coverage really is of legal writing, as distinguished from writing generally.
Imagine a lawyer who is asked to analyze a proposed contract and to advise the client on whether to sign it. The kind of writing used in a contract is rarely taught in a legal writing course, even though a lawyer who hangs out a shingle will encounter the task early on and for many years thereafter. The issue is not whether what the lawyer writes is persuasive, as it might be in the case of an appellate brief. It is not even whether the underlying document, the proposed contract, is written felicitously, with topic sentences and proper grammar. It is a word-engineering issue: whether the contract covers what it should, in a manner sufficiently favorable to the client, and with no unreasonable concessions to the other contracting party. It is a question not of expository writing, but of whether the contract legally serves its purpose and sufficiently protects the client.
Can these things be taught? They definitely can. Preparation of litigation complaints or motions, wills, deeds, and other kinds of legal documents also can be taught. The good news is that there are a few specialty courses that teach these strategies. The unfortunate news is that few students take very many hours of them, although they could be taught to most or all students.
While Professor Crumb's point about memos and briefs being the bread and butter of the 1L legal writing course generally still holds true, many legal writing courses nowadays also cover "drafting" skills too. The problem is that it's difficult, if not impossible, to cover predictive writing, advocacy writing, and drafting skills with any real depth within the usual 2-3 credit hours per semester that most faculties allocate to these courses. And while the thrust of Professor Crumb's article is very supportive of "skills" training in law school, to the extent he is suggesting that predictive and advocacy writing assignments are merely descriptive rather than analytical, he's incorrect.
I am the scholarship dude.