Thursday, August 22, 2019
Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.
Today’s Rhaw Bar is inspired by the start of a new law school year. I’ve been teaching legal writing courses for nearly twenty years, and it’s always right about now that I start collecting myself and my thoughts for the feedback I’ll be giving new legal writers on their writing. I also start thinking about the lawyers and judges who will be welcoming recent graduates into the practice and who might also be supervising those new lawyers and giving them feedback on their legal writing.
In this post, I describe a perspective an experienced lawyer can adopt for giving feedback to novice legal writers; an experienced lawyer can think about giving feedback as establishing a particular kind of ethos—the ethos of an “expert coach.” By taking the perspective of an expert coach when giving feedback, the experienced lawyer can help the novice legal writer more fully engage with the feedback and ultimately be a more effective, competent, and independent legal writer in the future.
The idea of developing a positive ethos for feedback is explored in depth in my article, “Building Credibility in the Margins: An Ethos-Based Perspective for Commenting on Student Papers,” so you can read more about the rhetorical theory that supports this perspective there. In addition, if you are interested in reading even more about how to give feedback to legal writers, take a look at Volume 1 of the Legal Writing Institute’s Monograph Series, The Art of Critiquing Student Work. While these articles are mainly about the feedback given by faculty to students in law school, the ideas in the monograph articles are transferable to the mentoring and supervising relationships between more experienced lawyers and novice legal writers who are just beginning their professional legal writing careers.
A Commenting Ethos Is A Perspective, Not A Technique
Mostly, when I talk with others about giving feedback to legal writers on their writing, we end up talking about the “techniques” for giving good feedback. Examples of techniques for giving feedback include “be sure to include feedback that is positive,” “avoid critical comments that start with the word ‘you,’” and “use a describe-evaluate-suggest” structure for your comments.” These techniques are all important in constructing effective feedback (both written or oral) for others’ legal writing. (You can learn about some of these techniques in the monograph and at the end of this article.) But, this post is not about technique. Instead, it is about the perspective one can take when giving feedback. That is, how should one think about the feedback task? How should a lawyer giving feedback approach the work? What attitudes should she adopt?
One perspective you can take on giving feedback is to think of feedback as a place where you construct who you are as the person giving feedback, a place where you construct your ethos. Ethos (one of the Aristotle’s three artistic modes of persuasion—ethos, pathos, and logos) is the idea that a person’s identity—as perceived by the audience—has persuasive force.
Aristotle considered ethos as having three dimensions: competence, character, and goodwill. In the context of giving feedback to newer lawyers, this means demonstrating that you, the commenter, are competent to give the feedback, are of the right character to give the feedback, and have goodwill toward the writer in giving feedback. A positive commenting ethos can help you meet the goals of persuading the writer engage with your feedback, to improve the document (and the next document), to better understand the writer’s audience, and to be more confident and competent to draft and revise in the future. Conversely, developing a negative feedback ethos can result in giving feedback that is ignored or not implemented fully—the perception of your competence, character, and goodwill doesn’t persuade the audience to listen to you.
Ethos is not something that you craft exclusively on your own; instead, ethos exists at the intersection between you, others with whom you interact, and the groups or communities in which you are a member. In other words, ethos is a social act that takes place in a particular cultural context. Thus, when giving feedback on the legal writing of others, you and your audience are acting together to construct your ethos for the feedback situation. The perspective you bring to that interaction can work to shape how your audience will interact with you to shape your credibility as a source of feedback. I’ve found that taking a perspective that emphasizes the ethos of “expert coach” rather than “rival writer” will improve your feedback’s appeal.
A Positive Commenting Ethos: Expert Coach, Not Rival Writer
Developing an “expert coach” commenting ethos can help you make choices in your feedback that will appeal to novice legal writers, engage them, and improve their writing. So, what is the ethos of an “expert coach”?
An expert coach is comfortable with (but not arrogant about) his or her competence and seeks to demonstrate that competence through detailed and kind feedback. The expert coach does not want to make the novice writer feel poorly about being a novice or about missing the mark on a first or even second attempt at a final product. Instead, the first goal of the expert is to show the novice that the expert is speaking on behalf of the community of readers and writers—that the expert is a “fellow legal reader.” This ethos of expertise coupled with fellowship builds the novice’s trust in the feedback and in the person giving it.
The expert coach’s second goal is to bring the new legal writer into the community by revealing the range of the accepted practices in the community to which the new writer wants to belong. This is the coaching perspective—the experienced lawyer sees himself as the source of detailed information that gives the novice writer insight into the audience’s needs and expectations. The goal of the expert is to build the novice’s confidence in herself so that she will make further efforts to join the community of legal writers and readers.
The expert coach does not project himself as authoritarian, someone who “tells” the new writer what to do or rewrites the document so that it is “right.” Instead he sees himself as an authority who knows much about the subject of legal writing and can guide, model, and make suggestions for someone who doesn’t have the same level of knowledge. The expert coach knows that she wants to convey feedback in an objective rather than a judgmental tone, using a tone that builds trust rather than exacts judgment or conveys irritation, impatience, or annoyance. An expert coach knows that supportive patience is essential to building the trust that results in the novice benefitting from the feedback.
An expert coach sees herself as sitting “alongside” the novice writer; the coach is not a rival trying to take control of the novice writer’s work or to demonstrate why the expert “wins” and the novice “loses.” Instead, the expert coach understands that the goal of the feedback is to give the writer power, not to take power away. Thus, the feedback tone is collaborative, not competitive, and the feedback content is reflective and engaging, not simply a rewrite of the novice’s work. The expert coach adopts an ethos that makes feedback empowering and gives the novice both ideas and options for how to improve.
Adopting a coaching ethos is particularly useful in relationships of supervision. If mentors and supervisors want mentees and subordinates to grow as writers by thinking, making choices, and exercising judgment for themselves rather than doing only what they “are told to do,” feedback should empower novices to get comfortable thinking, choosing, and judging. So, a good commenting ethos abandons a “rival” perspective and takes a seat “alongside” the novice as a fellow legal reader who encourages independence and responsibility-taking.
Because giving feedback on legal writing is such a practical, hands-on activity, it may seem a bit impractical and high-minded to focus attention on developing a perspective from which to begin the task. But, I’ve found that being intentional about the ethos I am constructing in the feedback process has helped me meet my feedback goals. If the goals of your feedback are to help new legal writers learn; join the discourse community; and be more independent, confident, and successful writers, developing an expert coach ethos will help you achieve those results.
Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at email@example.com.