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Wednesday, October 08, 2008

The Components of an LRW Program

The first thing that any LRW class should do is state its goals upfront.  And, as I suggested in previous posts, the goal should be more than “to teach you how to write stuff that lawyers write and to research the law.”  Rather, the goal should be something like, “to teach you how to act like a lawyer and to use the law the way that lawyers do to resolve real-life problems.”

It isn’t enough just to say this, because these words have no meaning to a novice.  I think it is necessary to make explicit from the start to students that the law is not some object or force out there that solves problems on its own.  The famous cases don’t get to the Supreme Court by themselves, and judges at any level don’t write on a blank slate—they write based on what lawyers write.  Admittedly, these are obvious points, but I do not think that traditional doctrinal teaching conveys this at all.  Indeed, I think that the case method tends to undermine this message.

From there, an LRW class could cover the following elements--at least introduce students to them; and instructors should show students how each relates to the primary goal of the course:

  • Turning messy real-life problems into legal problems;
  • Communicating with the client, supervising attorney, and opposing counsel;
  • Choosing and using appropriate legal research resources and strategies for every stage of a project;
  • Synthesizing Cases;
  • Writing in different genres, including genres that don’t arise in the context of litigation (because many, if not most, lawyers will rarely litigate a case);
  • Recognizing good and bad legal writing, which includes showing them legal writing other than appellate judicial opinions;
  • Professionalism.

One commenter to an earlier post argued that LRW is really just an opportunity for students to practice legal reasoning and to put it in writing.  Obviously, I thinks that's too narrow a goal for an LRW program; and it does not take much class time to include some of the other elements that I have suggested.  Here are some examples.

Rather than start with a clear law-based fact pattern, why not start with a story about a client who had something bad happen to him/her? And why not ask the students whether they have any intuitions about whether there is a lawsuit there.  Does it sound like a tort?  A crime?  A violation of constitutional rights?  Even students at the very beginning of their legal education have intuitions that move in the right direction--which is part of the point, i.e. that law often tracks what you think the "right" answer is.  And this--turning real life problems into legal issues--is what lawyers do in the real world. (To a degree, this also tracks at least one style of lawschool exams.)

Students should also learn how to sharpen that intuition and find a legal claim.  Secondary sources, such as treatises, are a great place to start.  Brainstorm some search terms.  Use the computer and the index to a hardcopy to get the basic contours of the claim.  Once again, this is what lawyers (particularly junior lawyers) do.  Then give them a case that's on point and ask them to reason from it.  Only then have them write their first memo.

It is also worth discussing alternatives to lawsuits.  Many students will want to immediately go to court to serve their client.  But can the client's interests be better served with a phone call to the other side?  With a letter to a state agency?  This necessitates a discussion comparing the client's interests (what s/he wants) with what a lawsuit can offer.  These are points worth returning to throughout the program.  For example, if the memo the students write concludes that the legal issue is a close call, then what should they tell their client about filing the lawsuit, given costs and competing interests?

There surely are other elements to a good LRW course.  I mean only to suggest that the "R" and "W" are not the only important parts of the program.  The point is that all of these are things that young lawyers need to understand, but often don’t get from the traditional law teaching methods in doctrinal class.

Next week, I'll address who should teach LRW, IRACing, teaching legal research, and bringing the principles of LRW into the doctrinal classroom.  I'll likely finish the series by responding to some of your comments and by offering some reflections on doing an LRW teaching fellowship on the way to getting a tenure-track doctrinal teaching gig.

Posted by Hillel Levin on October 8, 2008 at 10:15 AM in Hillel Levin, Life of Law Schools, Teaching Law | Permalink

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Comments

You might find it helpful to take a look at some existing trends and literature hovering around this topic. See, e.g., the new course on complex problem solving at Harvard; the course on Problem Solving, Decision Making, and Professional Judgment at Stanford; California Western's Center for Creative Problem Solving; Carrie W. Teicher, Legal Writing Beyond Memos and Briefs: An Annotated Bibliography, 5 J. Ass'n Legal Writing Directors 133 (2008); John O. Sonsteng, A Legal Education Renaissance: A Practical Approach for the Twenty-First Century, 34 Wm. Mitchell L. Rev. 303 (2007); Janet Weinstein and Linda Morton, Stuck in a Rut: The Role of Creative Thinking in Problem Solving and Legal Education, 9 Clinical L. Rev. 835 (2002).

Posted by: anon | Oct 8, 2008 11:49:32 AM

I'm a big fan of LRW courses and instructors. I have a question about these three items:

1. Turning messy real-life problems into legal problems;

2. Communicating with the client, supervising attorney, and opposing counsel;

3. Professionalism.

Those skills are, for lack of a better word, lawyering. Do LRW instructors have the skill set for teaching how to be a lawyer (and teaching each of those skills)?

The same question looms large regarding the over-arching skill -- determining whether there's a real legal claim here and, if so, what that claim is. Isn't that skill better taught in a clinic, externship, or clerking?


Posted by: Fan of LRW courses | Oct 8, 2008 5:20:34 PM

Practicing legal reasoning and putting it into writing is another way of saying "Turning messy real-life problems into legal problems." It is fairly standard in many LRW programs to begin a writing "problem" with a real life situation and then guide the students toward the particular issue(s) that you want analyzed.
The resulting memorandum is the primary way that summer clerks and new lawyers communicate with their supervising attorney. This, of course, includes asking relevant questions along the way. Creating the memo includes "Choosing and using appropriate legal research resources and strategies for every stage of a project: and, if appropriate, "Synthesizing Cases."

Posted by: anon | Oct 8, 2008 11:54:29 PM

Thanks for this post. One thing to consider about both LRW and moot court competitions and programs: many of the assignments and problems are geared toward very abstract legal questions (an issue of first impression, say, or whether a statute is constitutional, for example). Few of them seem fact-intensive; few of them appear to require students to really work the facts in a textured way. As a former appellate attorney, I was struck by how far removed my LRW and moot court problems in law school were from the kinds of problems I faced. I'd like to see more problems that involve reading a couple hundred of pages of material, for example (perhaps that would be the outer limit of what is logistically or practically feasible for LRW). I suppose its important to be able to make first-order legal arguments; but its far more important, I think, to learn how to argue about whether or not certain facts fall within or outside a recognized legal principle, whose core is not at issue, but which has some play in the joints at the margins.

Posted by: Tim | Oct 9, 2008 8:19:48 AM

As a law firm librarian, let me heartily second "Choosing and using appropriate legal research resources and strategies for every stage of a project." I can't tell you how many lawyers I work with have no idea how to use any of the great resources that we spend so much money on.

Posted by: J | Oct 9, 2008 10:19:04 AM

I would add two other elements in here that reinforce what I understand your ultimate objective to be (improving legal writing as a grass-roots effort):

* Understanding the difference between direct and indirect audiences, and what that implies about both the research and the writing. Consider, for example, defining the "audience" of an in-house memorandum on implementing the FMLA. Its direct audience is managers at the company, or perhaps in a slightly broader sense all employees. However, such a memorandum would be an utter failure if it failed to consider its potential indirect audience: A judge/jury, or a regulator, or a legislator. One cannot point the memorandum entirely at the indirect audience, because then it would probably not meet the immediate needs of the direct audience. One must nonetheless be sensitive to how the indirect audience will perceive this product; for example, in this hypothetical, a cold, heartless, cross-the-ts-and-dot-the-is tone is antithetical to its subject matter, and certainly will undermine the company's position in litigation... however subtly.

This is a subset of "prospective lawyers need to be taught the difference between tactics and strategy" -- an argument for another time.

* Understanding just how poor most legal writing is, and the value of using good writing as one's model (instead of whatever models happen to be handy, as a certain Really, Really Bad But Widely Used Textbook does). "Exceeding the expectation bar" is really not very difficult, but doing the minimum leads only to doing the minimum.

Posted by: C.E. Petit | Oct 9, 2008 11:30:04 AM

Lots of good comments--thanks! Here are some brief responses, in order.

1. Anon: Thanks for the cites. I'm familiar with some of them, though not all. I want to clarify that I do not mean to give the impression that there is a lot of original thought going into these points (though I think there is some), and there are lots of people bringing innovative and creative ideas to LRW. My goal is mainly to bring that discussion to the attention of the readers of this blog--with my spin on it--who don't necessarily travel in those circles.

2. Fan: I don't believe I've ever heard someone describe him/herself as a fan of LRW courses and instructors, and I'm gratified that you do! I am going to do a post on who ought to be teaching LRW (there are many different models), but I do think it is crucial to have instructors with some basic lawyering experience. "Basic lawyering experience" can mean a lot of different things, of course, and I think that's a good thing in the sense that all different kinds of lawyers will have something to add to classroom. I do think it is crucial to introduce students to these lawyering skills in the first year; and clinics, externships, and other (voluntary) programs are the appropriate places to build on those skills.

3. Anon: I think you are right that a lot of LRW programs include many of these elements in one form or another. I do not mean to give the impression that I am suggesting wholesale changes across the board. However, I do believe that basic LRW programs don't necessarily frame these lawyering skills as central to the course.

4. Tim: Coming up with interesting LRW projects that contain the right level of difficulty is exceedingly difficult. I take your point that LRW assignments should perhaps be heavier on facts; but there is a tradeoff there, because the course is intended to reinforce the basic legal reasoning skills that are taught in the doctrinal courses. Some of that would be lost if the "legal" answer is obvious once the facts are properly organized and analyzed. That's not to say that you are wrong; indeed, at Stanford, we tried to construct extensive factual "records" for students to draw from. To be sure, perhaps the right approach is to have a mix. It always seemed to me that the "one memo, one brief" model doesn't give students enough practice--and doesn't show them that while each case is unique, the skills they are learning are transferable.

5. J: Absolutely! I was one of those lawyers!

6. CE: I agree with you on both counts. The basis for any writing is an understanding of the audiences and the author's relationship to them. At When I was teaching at Stanford, we spent a lot of time on this and what it means for legal writing (my students would say "too much time," I think). I also agree that it is crucial to deconstruct both good and bad writing so that students can see the difference. It is really difficult to find good sample memos and briefs that are pitched at the right level of difficulty, though.

When I was a law clerk in the district court, I saw all kinds of horrible writing. Knowing almost nothing about practical legal writing (I went to Yale for law school), I still knew it was horrible. And the floor kept dropping. Strike that; there was no floor. The one benefit of this experience was that it gave me a lot of confidence--I thought to myself, "I might not be the best lawyer and legal writer in the world, but I sure as heck can do better than this!"

Posted by: Hillel Levin | Oct 9, 2008 9:35:42 PM

Thanks for your reply to my comment. I do wonder, though, whether you are unduly discounting the fact that analyzing the facts is a central component of legal reasoning. Of course, even the most abstractly stated legal questions involve facts, but there is a continuum, it seems to me: on the one hand, you might ask whether typical drug certs are testimonial within the contemplation of the Confrontation Clause (which could be fact-intensive, but can probably be abstractly framed for the most part); on the other, you could ask whether a particular complaint alleging an antitrust violation (or whatever) runs afoul of Twombley, or whether there was sufficient evidence to support a particular defendant's drug conviction. Thanks again. Looking forward to your next post.

Posted by: Tim | Oct 10, 2008 8:19:50 AM

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