Wednesday, November 6, 2019
Much has been written about how people learn, including studies showing that people move from being novices to masters, passing through various stages along the way. When learning new skills, novices act with a “rigid adherence to taught rules or plans” and use “little discretionary judgment.” As they move toward expert and mastery status, they no longer need to strictly rely on “rules, guidelines or maxims.” They have a “vision of what is possible,” they have an “intuitive grasp of situations based on deep, tacit understanding,” and they can improvise.
Moving from novice to master in any field at any skill typically requires a person to learn fundamentals before learning to manipulate or vary the fundamentals to become more effective at the skill. For example, when students are taught to form letters at an early age, they are taught to draw the lines of the letters in a particular direction and to match model letters exactly. Only after mastering the fundamentals of drawing letters do students begin to vary the precise models by adding personal touches that they think look better or flow better, yet still communicate the letters clearly. Similarly, athletes first learn the fundamental skills of their sports and practice those fundamental skills extensively. As these athletes practice and learn more about their sports and move toward mastery, they begin to improvise to perform the skills in unique ways that elevate the athletes’ performances to expert or master levels. Varying the technique of performing a skill by someone who has mastered the skill is accepted and even admired when the person is performing at a top level. If athletes are not performing effectively, though, coaches often insist that the athletes return to fundamentals to improve their games.
Like students first learning to draw letters and athletes first learning the skills of their sports, law students and new lawyers must begin with fundamentals and work through the stages, from novice to master, when engaged in legal argument and writing. Professors and lawyers working with these novices must exercise patience as they wait for these law students and lawyers to develop. A common refrain from lawyers working with novice legal writers is that these novice writers do not write persuasively enough. Perhaps this is because they are novices who have not mastered legal argument and writing sufficiently to improvise—to vary from the “taught plans or rules” and use their discretion. They do not yet have a deep, tacit understanding of how far they can push their arguments beyond the existing law and how strongly they can tell the court how it should find or hold. They are new to legal discourse; they do not know how bold or creative they can be. They are like the children learning to draw letters who try to precisely follow the models of letters and do not dare to add an unnecessary flourish or variation. They have not yet reached mastery.
Frustrated by the work of novices, professors, lawyers, and judges sometimes criticize these writers for following formulas and not taking more license with their writing. Novices even worry that their “formulaic” writing may be a problem. Legal writers are taught to use formulas, such as IRAC and CREAC, to ensure that they provide the information necessary for a solid legal argument and analysis. These formulas are used because they track a logical way to present information needed for legal arguments. Judges are looking for arguments that are supported by rules, explanations of those rules, and application to the facts involved in a case. As these writers practice and learn more about writing legal arguments persuasively, they will become more adept at varying structures of their arguments. They will learn when to depart from rigid adherence to taught rules when doing so will make their writing more persuasive.
A suggestion for these novices and their professors and mentors is that the novices write a draft using IRAC or CREAC to ensure that they have included the necessary information. Once a draft exists, the writer should then revise and edit the work to turn it from an accurate statement of the law and reasoning to a persuasive piece of advocacy. This may involve deliberately altering the formulas employed. For example, precedent case discussions might follow a rule as part of a rule explanation when the precedent case discussion is necessary to explain and interpret the rule. On another point of law or argument, the precedent case discussion might follow the application of the rule to the case at issue. Deciding to make this move says to the court that this is the rule, this is how the court should apply it to the facts, and the precedent case corroborates the argument being espoused. This way guarantees that the court will not become distracted by a precedent case discussion when it comes before the argument involving the case at issue. It also risks that the court might have wanted a fuller exposition of the law before the argument. As the writer gains expertise and begins to master persuasive legal writing skills, he or she will become better at determining the best way to proceed in writing an argument, confidently moving away from rigidly following taught rules or plans when appropriate.
Instructing the novice on the necessary parts of an argument and how to order the parts of an argument is valuable, as is emphasizing to the novice the importance of revising and editing. Even though the novice will adhere to a formula initially, the novice will only improve as a writer if he or she is willing to experiment with revising to make arguments more compelling. Novice writers tend to underestimate the value and necessity of revising and editing. The best writers know that rarely if ever is the first draft the best draft. Once a writer writes the parts necessary to make an argument, that writer should move the parts around, manipulate the language, and present the arguments in the best format to make the case to the court.
So, to professors and supervising lawyers, expect to instruct students and new lawyers on how to make their writing more persuasive. Expect to revise and edit their writing to show them exactly how to do this effectively. Model the behavior you want to see in these novices. And, with time, the arguments and the writing will be more persuasive as the writers move toward mastery.
 See, e.g., Stuart E. Dreyfus, The Five Stage Model of Adult Skill Acquisition (June 1, 2004), https://www.bumc.bu.edu/facdev-medicine/files/2012/03/Dreyfus-skill-level.pdf.
 Raman K. Attri, 7 Models from Research Demystify Stages in Novice to Expert Transition (Nov. 18, 2017), https://www.speedtoproficiency.com/blog/stages-in-novice-to-expert-transition/.
 Mary Beth Beazley, A Practical Guide to Appellate Advocacy 97 (5th ed. 2019).
 IRAC: Issue, Rule, Analysis, Application, or Argument, and Conclusion. CREAC: Conclusion, Rule, Explanation, Analysis, Application, or Argument, and Conclusion.
 See Beazley, supra note 5.