A Call To Combine Rhetorical Theory and Practice in the Legal Writing Classroom

The theory and practice of law have been separated in legal education to their detriment since the turn of the twentieth century. As history teaches us and even the 2007 Carnegie Report perhaps suggests, teaching practice without theory is as inadequate as teaching theory without practice. Just as law students should learn how to draft a simple contract from taking Contracts, they should learn the theory of persuasion from taking a legal writing course. In an economy where law apprenticeship has reverted from employer to educator, legal writing courses should do more than teach analysis, conventional documents, and the social context in which lawyers write. The legal writing professor\u27s task is to impart to her students the intellectual ballast necessary to navigate complex analytical challenges in the workplace. By combining rhetorical theory and practice in the legal writing classroom, the professor can pique students\u27 interest, hasten their learning, and help them develop transferable skills better than teaching by imitation alone. In addition, teaching the rhetorical nature of law in a legal writing course helps students debunk sooner the myth of black letter law in their doctrinal courses. Finally, as the Carnegie Report indicates, a more holistic approach to teaching can best blend the analytical and practical habits of mind that professional practice demands.... This Article begins with a brief history of the separation of theory and practice in the law classroom and the impact that it has had on the quality and reputation of writing as its own subject. The Article argues that despite a wave of pedagogical advances, legal writing as its own subject has ample room to grow. For legal writing courses to achieve intellectual maturity, they must incorporate rhetorical theory. To ignore it is to confirm Plato\u27s suspicion that rhetoric is a discipline without a subject matter and to enable the insidious undervaluing of our profession. As detailed below, there are several advantages to teaching legal writing as rhetoric. Although not the focus of this Article, a corollary advantage may be to help legal writing faculty achieve academic equality, which benefits teacher and student alike. For a variety of reasons, this Article concludes that legal writing professors are responsible for teaching both practical skills as well as the theories that inform them

Aristotle’s Tried and True Recipe for Argument Casserole

I thoroughly enjoyed John Schunk’s article— “What Can Legal Writing Students Learn from Watching Emeril Live?”—in the Winter 2006 issue. We are big Emeril fans in our family, and we too have heard him distinguish the art of baking casseroles from the art of baking cakes. Baking a casserole is more art than science, because although there are basic ingredients, a creative cook can vary the recipe to please a variety of palettes. Baking a cake, on the other hand, is more science than art, because if the cook eliminates a necessary egg or adds too much baking powder, the cake could fail. That legal writing is a casserole and not cake is an apt metaphor. In his article, Professor Schunk has captured the palpable tension our first-year students feel between wanting to be creative, and at the same time, wanting to do it the “right” way. As Schunk notes, in their quest for concrete knowledge, first-year law students often latch onto the idea that legal writing is a cake, and all they need to do is memorize and follow the recipe

The Inside Scoop: What Federal Judges Really Think about the Way Lawyers Write

A recent survey indicates that what troubles federal judges most is not what lawyers say but what they fail to say when writing briefs. Although lawyers do a good job articulating legal issues and citing controlling, relevant legal authority, they are not doing enough with the law itself. Only fifty-six percent of the judges surveyed said that lawyers “always” or “usually” make their client’s best arguments. Fifty-eight percent of the judges rated the quality of the legal analysis as just “good,” as opposed to “excellent” or “very good.” The problem seems to be that briefs lack rigorous analysis, and the bulk of the work is left to busy judges. Many judges also indicated that lawyers often make redundant or weak arguments that detract from the good ones. What judges really want is shorter, harder hitting briefs

The Rhetoric of Email in Law Practice

This article responds to and appears alongside an article by Professor Kirsten Davis in the December 2013 issue of the Oregon Law Review. An interesting debate has arisen among legal writing faculty with respect to the primary form of communication today between attorneys, and between attorneys and clients. Although most legal writing faculty agree that teaching traditional memoranda continues to have pedagogical benefits for first-year students, there is disagreement on how to conceptualize and teach the use of email memoranda in law practice. Professor Davis argues that to think of and label “email memoranda” as something different from traditional memoranda is misguided. In contrast, this article argues that email memos are indeed different—that the medium of email has altered the nature of the message (as Marshall McLuhan might say). In other words, the process of writing email in the context of a conversation changes both the format and the nature of legal analysis. This author also believes that the question for legal writing faculty is not whether to teach traditional memoranda or email analysis but how to teach both well to prepare law students for the real world of law practice

A Writing Revolution: Using Legal Writing\u27s \u27Hobble\u27 to Solve Legal Education\u27s Problem

The attached article responds to a 2011 article by John Lynch, published in the Journal of Legal Education, that urged legal writing faculty to return to an outmoded and ineffective writing pedagogy, the “product approach,” on the grounds that it would make teaching legal writing easier. This article builds on the work of Carol McCrehan Parker and others interested in writing across the curriculum and argues that the only way to reduce legal writing’s “hobble” and to solve legal education’s problem is to create a six-semester writing requirement. The reason law students are graduating without adequate preparation for practice is that law schools have failed to commit to teaching writing. Most law students graduate having been required to take only an introductory course that teaches practice-related writing skills and an upper-class seminar with a scholarly writing requirement. Law schools can no longer afford to rely on a small percentage of faculty or externships to teach the most important skill law students have to offer on graduation. Because matriculating students have less writing skill and experience than they did even a decade ago, the need for a six-semester writing requirement is that much greater. This article then discusses a proposed writing curriculum that would not unduly burden law schools or their faculty and concludes with additional, specific recommendations for incorporating writing across the curriculum—in doctrinal and writing courses—to improve students’ metacognitive skills and their ability to transfer those skills to practice

“Best Practices”: A Giant Step Toward Ensuring Compliance with ABA Standard 405(c), a Small Yet Important Step Toward Addressing Gender Discrimination in the Legal Academy

In March 2014, the American Bar Association (ABA) voted to leave Accreditation Standard 405 undisturbed.” The ABA’s decision required law schools to continue to grant tenure to traditional law faculty, yet permitted them to continue to deny tenure to clinical and legal writing faculty. At the same time, recognizing the need for increased professional skills training, the ABA voted to increase the number of experiential credits law students must complete from one to six. As explained to the ABA Council in advance, these two decisions work together to increase the demands on skills faculty, who are predominantly female, yet keep them at a lower professional status with less security of position. And it is not clear that law schools are hiring additional, full-time skills faculty to meet these demands. During the six years of review and debate that led to the 2014 vote, the Society of American Law Teachers (SALT) and the Association of Legal Writing Directors (ALWD) urged the ABA Council to continue to require tenure to ensure academic freedom. Along with the Clinical Legal Education Association (CLEA), they further urged the Council to adopt a standard that would not discriminate against full-time faculty on the basis of subject matter. The only proposal the Standards Review Committee made that came close to the joint recommendations was Alternative C. Although it did not require tenure, Alternative C proposed that law schools accord all full-time faculty members the same rights as other full-time faculty “irrespective of a full-time faculty member’s academic field or teaching methodology.” The Council rejected Alternative C and chose not to publish it for notice and comment. Regrettably, the long and tortured history of Standard 405 suggests that the vision of equal opportunity for all law faculty—traditional, clinical, legal writing, academic support, and teaching librarians—is not going to be realized anytime soon. The highest and best security of position most professional skills faculty can likely hope for in the near future is that embodied in current Standard 405(c). Thus, law schools’ adherence to established best practices is necessary if “reasonably similar to tenure” is to mean something for those who struggle to and ultimately achieve 405(c) status

Paradigm Lost: Recapturing Classical Rhetoric to Validate Legal Reasoning

At the inception of their careers, most lawyers have little or no background in classical rhetoric. Many law students enter law school thinking that they will receive formal training in either logic or rhetoric, but very few law schools even teach classes in these subjects. In the absence of any formal training, most lawyers learn to write persuasively by imitating “good” legal writing. The consequence for the legal profession is an abundance of legal writing that is not grounded conceptually in the rhetorical tradition from which it is derived. The principal problem with legal writing is not that lawyers cannot write; the problem is that we have not been taught how to create and construct arguments. It is not our writing that is undeveloped or unclear; it is our thinking. In order to develop “clearer” thinking, lawyers need to know something about the rhetorical tradition from which legal argument is derived. This article highlights the need for educating lawyers about the rhetorical tradition, to provide a brief summary of the basics in syllogistic and analogical reasoning that lawyers need to know in order to understand that tradition, and to isolate and analyze several of the problems in both types of reasoning common to legal writers. Each of these problems can be identified, evaluated and improved regardless of the lawyer’s “writing ability” or experience level. The article creates a working vocabulary for recognizing these problems that enables lawyers, professors, students, and judges to communicate in the same language about a critical component of persuasive writing – the validity of its reasoning

Analysis, Research, and Communication in Skills-Focused Courses

Since the Carnegie Report and Best Practices for Legal Education were published, a new focus has emerged on building students’ traditional foundational skills through increased opportunities for experiential education, including legal research and writing instruction. Although the Carnegie Report explored legal writing pedagogy in some detail, Best Practices devoted little attention to how foundational analytical, research, and writing skills are or should be taught with specificity, which provided the impetus for more extended treatment here. This section identifies some “better practices” being used and urges adoption of best practices. In skills-focused courses, legal analysis, research, and writing should be taught as a fluid and recursive process in a client-centered context, giving students the opportunity to write, reflect, and revise. To build and retain fundamental skills, law students should have at least one significant writing experience each semester of law school. It could take the form of practice-related or “instrumental” writing, “writing to learn” exercises, or other forms. Although the ABA requires two rigorous writing courses in the J.D. curriculum, many schools require that only one be practice-related. Some schools have addressed the inadequacy of the ABA requirements by expanding their legal writing programs from two to three or four semesters. The best practice is also to offer advanced, upper-level courses in analysis, research, and writing. For maximum effectiveness, all foundational writing, research, and analysis courses taught in the first year should be taught in small classes by full-time law teachers with practice experience and equal status

Analysis, Research, and Communication in Skills-Focused Courses

Since the Carnegie Report and Best Practices for Legal Education were published, a new focus has emerged on building students’ traditional foundational skills through increased opportunities for experiential education, including legal research and writing instruction. Although the Carnegie Report explored legal writing pedagogy in some detail, Best Practices devoted little attention to how foundational analytical, research, and writing skills are or should be taught with specificity, which provided the impetus for more extended treatment here. This section identifies some “better practices” being used and urges adoption of best practices. In skills-focused courses, legal analysis, research, and writing should be taught as a fluid and recursive process in a client-centered context, giving students the opportunity to write, reflect, and revise. To build and retain fundamental skills, law students should have at least one significant writing experience each semester of law school. It could take the form of practice-related or “instrumental” writing, “writing to learn” exercises, or other forms. Although the ABA requires two rigorous writing courses in the J.D. curriculum, many schools require that only one be practice-related. Some schools have addressed the inadequacy of the ABA requirements by expanding their legal writing programs from two to three or four semesters. The best practice is also to offer advanced, upper-level courses in analysis, research, and writing. For maximum effectiveness, all foundational writing, research, and analysis courses taught in the first year should be taught in small classes by full-time law teachers with practice experience and equal status

Implementing Effective Education in Specific Contexts

This chapter of Building on Best Practices: Transforming Legal Education in a Changing World includes contributions from many authors: Section A, The Socratic Method, is by Elizabeth G. Porter Section B, Analysis, Research, and Communication in Skills-Focused Courses, is by Ruth Anne Robbins, Amy Sloan & Kristen K. Tiscione Section C, Use of Technology in Teaching, is by Michele Pistone and Warren Binford Section D, Law Libraries and Legal Education, is by Jonathan Franklin Section E, Cross-Border Teaching and Collaboration, is by Kimberly D. Ambrose, William H. D. Fernholz, Catherine F. Klein, Dana Raigrodski, Stephen A. Rosenbaum & Leah Wortham Section F, Experiential Education, includes: Incorporating Experiential Education Throughout the Curriculum, by Deborah Maranville with Cynthia Batt, Lisa Radtke Bliss & Corolyn Wilkes Kaas Delivering Effective Education in In-House Clinics, by Lisa Radtke Bliss & Donald C. Peters Delivering Effective Education in Externship Programs, by Carolyn Wilkes Kaas with Cynthia Batt, Dena Bauman & Daniel Schaffzin, and Ensuring Effective Education in Alternative Clinical Models, by Deborah Maranvill