Monday, September 15, 2014

Experiential Legal Writing: The New Approach to Practicing Like a Lawyer

To state the obvious, not only do experiential classes need to be added to the law school curriculum, they need to be added in the proper way.  The sequence used to teach doctrine and skills is very important. Certain items need to be taught before students can move on to more advanced items.

Adam Laparello and Charles E. MacLean have written an important article concerning how material and skills should be taught in law school.  Experiential Legal Writing: The New Approach to Practicing Like a Lawyer.


"Law students engage in various types of 'experiential' learning activities while in school, such as clinics and externships, but they graduate without the experience necessary to practice law. This is traceable to a glaring deficiency at most law schools: a writing program that is comprehensive, properly sequenced, and integrated across and throughout the law school curriculum.
First, most graduates have never drafted the documents they will encounter in law practice.  Additionally, they have not drafted and re-drafted such documents while also participating in real-world simulations as they would in actual practice. Instead, students graduate having drafted an appellate brief, a contract, and maybe a complaint, and having participated in one or two oral arguments. That is akin to a medical school graduate who has perfect knowledge of human anatomy from the waist up. When a patient is carted into the emergency room with a broken leg, the medical school graduate will stand there confused and unable to diagnose or treat the patient. Law graduates face the same problem. They cannot competently solve legal problems unless they have experience in the all parts and sub-parts of the dispute resolution process, and grapple with complex facts as real attorneys would in an actual litigation.
Second, law students do not draft litigation and transactional documents in the order that they would draft them in actual practice. They do not understand that good writing is re-writing, not merely revising.  Students do not have a practical understanding of the role and purpose that litigation and transactional documents play in the dispute resolution process, or learn to exercise strategic judgment as writers, counselors, negotiators, and advocates. Graduating without a contextual understanding of law practice — and outstanding persuasive writing ability — leaves students without many essential skills.
The authors’ experiential legal writing model has two components: large-scale or cross-curricular sequencing, and small-scale or intra-curricular sequencing. In large-scale sequencing, which is applied in the first year of law school only, doctrinal and legal writing faculty design a cross-curricular hypothetical fact pattern containing legal issues from all first-year courses, and then design sequential writing assignments (and simulations) as they would occur in actual practice.
Small-scale sequencing occurs exclusively in the legal writing curriculum, and consists of two subcomponents.  First, students receive a multi-issue hypothetical in the first year that is chronologically sequenced and takes students through each step of the litigation and transactional process. In addition, the legal writing programs extend over all six semesters of law school, thus giving students sufficient time to practice and develop their writing skills on a variety of documents.  The goal is to produce graduates who are outstanding re-writers, not just good writers, and who can practice, not merely think, like lawyers.
The article also includes numerous diagrams on sequencing.
Some key excerpts:

1. "Experiential learning encompasses five elements: (1) experiencing, (2) reflecting, (3) processing, (4) generalizing (identifying learned principles), and (5) applying to different contexts the information learned from the initial experience."

 "The experiential learning cycle must be connected to the development of professional competencies, and students must acquire these competencies before they can apply them to different contexts. Context is essential, because it often requires a student to apply or emphasize different skills. Thus, mastering a competency in one context, e.g., drafting an appellate brief, does not mean that a student can draft a motion to dismiss or a trial brief effectively. Likewise, oral advocacy skills at the trial and appellate court levels are fundamentally different. Thus, the skills a student acquires when drafting an appellate brief or arguing before an appellate court do not necessarily transfer to other litigation documents or stages of litigation. In other words, law schools must train students to master the skills that apply to specific documents in particular contexts, but that do not necessarily apply across contexts. For that reason, repetition of the same activity and exposure to the various areas of litigation and transactional practice that a student will encounter in the real world are essential. Coupled with the fact that the skills required to competently practice law (including writing, reasoning and analysis, research, sound judgment, strategic decision-making, counseling, and negotiation) are inherently complex, students need sufficient time to repeat, reflect, and refine context-specific skills. 

2. "If experiential learning is overused in a first-year doctrinal course, it may interfere with substantive knowledge acquisition and development of critical thinking skills."

"Doctrinal courses should, however, incorporate more problem sets or fact patterns so that students can apply their legal knowledge to hypothetical or real-world problems. One way to facilitate this is by flipping the classroom, which requires students to watch short videos before class in which professors are outlining the substantive law.  This allows the professors to spend less time in class discussing basic legal principles, and more time discussing real-world problems to which students must apply their knowledge. Such an approach is experiential in the sense that it trains students to be problem solvers, but it maintains the focus on developing critical thinking skills."

3. "One mistake law schools make is conflating practical skills and experiential learning. That causes students to enroll in clinics and externships before they are ready. Experiential legal writing, however, teaches practical skills, persuasive writing and client counseling negotiations skills, and improves analytical ability, both of which are essential to maximizing outcomes in clinics and preparing students for the real-world practice of law."

4. "Of course, success of an experiential legal writing model depends on effective assessment, both at the formative and evaluative stage, that measure real-world skills and core competencies."

I agree that first-year doctrinal courses should not include complicated experiential assignments, as defined in the article.  Rather, they should go deeper into teaching students how to think like a lawyer and how to apply that knowledge in problem-solving exercises.  Thinking like a lawyer should include the miniskills that make it up--deductive reasoning, analogical reasoning, distinguishing cases, synthesis, and policy-based reasoning.  (see my book, Think Like a Lawyer: Legal Reasoning for Law Students and Legal Professionals (ABA Pub. 2013).   Students should also apply their newly-learned doctrinal knowledge to problems in first-year classes.  For example, at the end of the unit on intentional torts, the students could solve intentional torts problems, both outside and inside class.

(Scott Fruehwald)

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