Monday, January 18, 2016
That's the point Professor Maureen Johnson (Loyola) makes in this recently published article entitled To Quote or Not to Quote: Making the Case for Teaching Law Students the Art of Effective Quotation in Legal Memoranda, 56 S. Tex. L. Rev. 283 (2014). It's also available on SSRN here. From the abstract:
Legal writing courses serve one very practical purpose. These courses prepare students for practice by teaching students how to write. Yet current legal writing programs fail to teach students one very fundamental skill. Students are taught that they should only “sparingly” quote from judicial opinions, if at all, which is directly at odds with how practitioners draft briefs in real life. This disconnect must end. Legal writing professors must come clean about the importance of effective use of quotation and teach this skill to first-year law students.
This article begins with a historical view of the evolution of legal writing. A century ago, briefs were banged out on classic Remington typewriters. If a brief was edited, it had to be re-typed. Understandably, both briefs and court opinions were short. Technological advances such as computers and the Internet drastically changed all of that. The average length of judicial opinions jumped substantially in the mid-1970s. And even a cursory review of appellate and trial court briefs demonstrate that our top legal scribes now rely heavily on quotation. Accordingly, while it may once have been sage advice to teach students not to use quotation, that advice fails miserably in terms of preparing current students to write effective legal briefs.
The remainder of this article addresses both the causes and the solution for the failure of legal writing programs to teach students the art of effective quotation. One major reason is that current legal writing texts uniformly repeat the mantra that quotes should be used “sparingly,” if at all. The rationale is that poor use of quotation can disrupt the flow of a brief and may even suggest that the writer is lazy. Of course, these concerns are exactly why law schools should teach students how to do it right. There are several concrete exercises and techniques set forth in this article that are designed to do just that. The focus is on deconstructing recent well-written briefs from both trial and appellate courts.
This article concludes with a discussion of how teaching effective quotation can be included in first-year legal writing curriculums. There are two basic manners. First, the suggested exercises can be introduced in “baby steps,” while still utilizing existing texts and following the traditional model of having law students begin their first semester by drafting a predictive legal memorandum for a hypothetical law firm. A second approach would be to instead have students draft a predictive legal memorandum for a hypothetical judge. Rather than being presented with a client file, students are presented with a round of well-written briefs. This enables students to immediately see how top lawyers effectively use quotation. Regardless of which approach is chosen, instructing students how to effectively use quotation can and should begin immediately.