Wednesday, April 14, 2010

Elevators and Artichokes: The Basic Errors in Law School Term Paper Writing

Posted by Jeff Lipshaw

I have just gone through a difficult session reviewing a student's "directed study" term paper.  It was odd to hear a statement to the effect that "I was a good writer before I got to law school, but legal writing screwed me up."  I can still remember vividly sitting in a small section of my sophomore year U.S. history survey course at the University of Michigan (circa 1973), and the teaching fellow (to become lifelong friend and widely-acclaimed historian and gerontologist) W. Andrew Achenbaum describing what we were to do when we wrote the three five page papers that were required for the course.  "A history paper," Andy said, "is like a legal brief."  Well, at age nineteen, I had no clue what that meant, but I do now.  You make an overall assertion - the thesis statement - then supply supporting arguments that are backed by the historical evidence.  (Note: just to make me feel really old, the other grader on the papers was Andy's best friend and fellow TF, Jan Lewis, the mother of current New York Law School prof James Grimmelmann.)

So, students, when you write those papers to fulfill your writing requirement, it's barely a leap from brief writing to expository prose.  And consider what I pointed out in this instance as deficiencies on at least three levels:

Images-3 The "Elevator Speech" Failure:  This is the basic compositional and organizational failure.  I can barely read your paper because I have no clue from section to section, paragraph to paragraph, and sentence to sentence, why I am reading what I'm reading.  Before you start writing you should have an outline in mind, and it's not just a placeholder for the data you've collected.  No, it's the elevator speech - the argument you make if you get on the elevator at the ground floor and have to present your conclusion in the ninety seconds or so it takes you to get to the fiftieth floor.  It sounds something like this:  "My main point is that the adoption of the Omnibus Garbage Collection Act is going to have unintended adverse consequences that outweigh the purported benefits.  I have three points in support of that position.  One, the benefits are grossly overstated (see supporting evidence).  Two, the recognized consequences are understated (see supporting evidence).  Three, there are additional consequences that have yet even to be recognized in the debates (see discussion by renowned garbage theorists).  Four, there are ways of ameliorating these consequences to improve the legislation (see my proposals).  Conclusion:  The current legislation should be scrapped in favor of my proposal.  Thank you very much.  Here's your floor."

Images-4 The "Peeling the Artichoke" Failure:  You skimmed over the top and never dug deep enough into the materials.  Rather than actually reading the statutes and cases, you relied on commentary you pulled out of law reviews, or worse, Wikipedia.  As a result the paper is replete with basic errors simply because you were not thorough.  Modern manufacturing methods have a problem solving technique called the "5 Whys."  When you think you've hit pay dirt as to the cause of a problem, you ask "why" about that cause, and repeat it five times until you've asked five whys.  In my metaphor, it's peeling the artichoke of an issue, digging deeply, questioning every source until you've gotten to something that may not be the bottom, but it's a helluva lot better than the superficial place you started.

The "Presentational" Failure:  I hate to be a pedant, but remember when you write that there's a reader on the other end of the process.  Misspellings, typos, incorrect citation forms, sentences with mixed tenses are all distractions, and suggest that sloppy form means sloppy substance.  One particular peeve of mine:  I've started to resign myself to the use of "they" to refer to a single entity like, for example, General Electric Company.  I think GE is an "it", not a "they," but, as I said, I'm something of a pedant.  But, damn it, if you are going to use the "they", do it consistently, and don't be switching from "it" to "they" and back from sentence to sentence.

One last thought.  This may be a generational thing.  The internet gives us unlimited access to data.  Students have told me they get overwhelmed with the amount of articles, materials, etc.  Information isn't knowledge, and knowledge isn't exposition.  Once you've gathered the data, put it aside.  Close the door.  Clear your mind.  Write your elevator speech.  Create an outline based on the elevator speech.  Then use the data to support the points in the outline.  Trust me.

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Thank you for this! I read it, printed it out, and emailed it to my friends and my writing teacher from last year. I'm always happy for more tips :)

Posted by: UWashington 2L | Apr 14, 2010 10:17:59 PM

I think these are legitimate points, but I have two objections. First, I believe you made a writing mistake in this article amidst laying into anyone else who makes writing mistakes. Second, your student was trying to browbeat you as an effort to "play the ref": a tactic that is far more essential for getting into law school than is mastering the ability to think or communicate in a coherent manner.

I'll start with my first point. You say "it's barely a leap from brief writing to expository prose," inexplicably reversing the order of the two in the comment you're rebutting. Your student wants to leap from expository work to legal writing. He is not a legal writer who can't transition into expository work.

Normally, I would let something like that go, because I exercise the kind of generosity as a reader that I expect from writers. I want the writer to try to do the things you discuss in this article. In return, he wants me not to let minor mistakes "distract" me. I would argue that picking at citations and complicated verb tense rules during a first read-through is the proximate cause of your distraction. (Still, I wouldn't say you're pedantic.)

Without that kind of relationship, trust breaks down. The student restricts his style to simple expressions he knows he can use without mistake, rather than experimenting with new sentence structures or rhetorical flourishes. He knows it isn't worth the time trying to grow or experiment, because grammar represents an all-or-nothing proxy for the merit of his work.

Ultimately, professors have a choice. They can treat compliance with complicated grammar and citation rules as a learned craft to pass down to apprentices. Alternatively, grammar and citation can be pre-requisites for a professor's respect, embodied as a presumption against the merit of any writer who cannot master them BEFORE submitting academic assignments (a.k.a. PRACTICE assignments).

Now for my second point. The premise of this article is undoubtedly that the non-"leap" from college writing should mean law students must already be prepared for this kind of work. Perhaps the problem is that law schools recruit people who can master the LSAT and secure 4.0's rather than people with fundamental writing and analytical skills. The two sets are significantly different, because securing a 4.0 and getting a good LSAT score become full time occupations that distract from the substance of one's undergraduate education.

Students who can make it into a good law school are the ones who hustle their way to 4.0's. Those who didn't worry about their grades, and instead try to improve their skills, lose out to these types in admissions contests time and again. Perhaps you can tell which side I'm on from my own grammar mistakes and tense mixups. Your student made that comment because he is trying to browbeat you into giving him a good grade. Who knows why this tactic works with undergraduate professors, but it does, and "playing the ref" like this becomes an essential skill for anyone who aspires to post-secondary education in a prominent school.

Behold. American Education.

Posted by: Brown Bourne | Apr 15, 2010 6:31:08 AM

Good advice, Jeff! I'm going to reprint it for my seminar class. As for BB's comment, I'm sorry, but people are going to judge you on clarity of expression. If you do not spend the time on proofreading, you will look sloppy. And it's much better to get the correction in school, when you presumably have a chance to do a re-write than in practice, where it can be really detrimental. The major mistakes I tend to see involve the use of the apostrophe and failure to appreciate the difference between "it is," "its," "your," and "you are." (sorry, my pet peeve). Best, MC

Posted by: Miriam Cherry | Apr 15, 2010 4:41:10 PM

Also, I think using "they" for corporations is, after Citizens United, at least arguable.

Posted by: Matt Bodie | Apr 16, 2010 9:04:44 AM

If you claim to be a pedant, you'd better make sure any declaration about being a pedant contains no errors in punctuation. Just sayin'...

Posted by: Ben Opipari | Apr 23, 2010 1:27:04 PM

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