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Sunday, December 15, 2013

Learning the language of law

Law is a language. It involves a particular way of speaking and the use of certain phrases and terms, some often confusing or cumbersome, having arcane meanings and/or drawn from statutes and rules which themselves often are not well drafted. But it is the language we are stuck with and the language that they must use in the practice of law. That is a particular thing in class such as Civil Procedure and Evidence--"failure to state a claim upon which relief can be granted," "proof sufficient to support a finding," "meet the burden of production on the non-existence of the presumed fact" . . . it goes on. (In fairness, I'm sure people can find similar examples in their own specialties).

My question is how much should that language matter, both in class discussion and on the exam? How much precision should we demand of student answers when it comes to stating the legal standards and rules and important lingo. Is it enough that the student gives us the "gist" of the standard when we understand what they mean? Or should we demand that they be precise, especially when (as with my recently completed Evidence exam) they have the rules in front of them (in which case imprecision just shows unwillingness/inability to engage with text, which is separately problematic).

For example, I gave a question with a rebuttable presumption (rear-end collision is the rear driver's fault); the plaintiff offered evidence that a rear-end collision occurred, the defendant offered testimony that he was going along with the flow of traffic when the plaintiff stopped in the middle of the road for no reason, with no cars in front or around her. One student wrote the following: "Because this is a rebuttable presumption, the defendant could offer evidence to rebut the basic facts or the presumption; he did the latter." Now, I know what the student meant (I think) from the context of the sentence and she is correct, although she did not use the proper term. At the very least, she would look really uninformed if she said this in a brief or in open court.

So should she get full credit? Or should we insist that full credit comes not only from applying the concepts, but also from stating them precisely and accurately--from using the right language.

Posted by Howard Wasserman on December 15, 2013 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink


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Adam: I do use that exact phrasing in teaching presumptions. That is, of course, why I would want the students to use that terminology. Everything I'm talking about here is terms I used (repeatedly) in class. The issue is whether I demand they use those terms in the same manner on the exam or whether a rough substitute is OK.

Posted by: Howard Wasserman | Dec 17, 2013 7:17:39 AM

Thanks, Howard.

I think there are two things going on here. I wonder whether, in describing this process works to your students, you would ever use the "basic facts" formulation? Perhaps to flesh it out? It has that kind of ring to it, Although I take it your example is a composite, I can easily imagine how a student could fasten on to that kind of evocative phrasing.

Second, this is one of those issues where - confessing freely my Torts-inspired inclination to collapse everything to a single standard of reasonableness - the "presumed fact" phrasing would always throw me off. To me, that sounds like the kind of "descriptive facts" that underlie claims about negligent behavior ("The defendant hit me"), but I take it that you are referring to the "fact" of negligence ("he is negligent for hitting me"). I have always found this type of law/fact distinction slippery in negligence cases, though I'm sure it would make more sense to me if I taught Civ Pro. Personally, I would always avoid using the word "fact" to describe a finding (whether via presumption or otherwise) of negligence. Regardless of the standard of review, it just doesn't quite seem right to me. But, twenty-two years after squinting hard in Civ Pro as a law student, I'm pretty sure my intuition has failed to carry the day.

Posted by: Adam | Dec 16, 2013 10:52:41 AM

I would say that "rebut the presumed fact" is the true alternative to "rebut the basic fact" and both fall within the broader umbrella of "rebut the presumption."

Posted by: Howard Wasserman | Dec 16, 2013 10:31:35 AM

I think SM hits on the most critical point, both the understanding of the importance of the legal term of art and the meaning of that term of art. As a civil procedure professor I spend a good bit of time talking about the importance of the language of civil procedure and using the right word in the right context. In writing an essay on Twiqbal early in the semester, my students often want to use a word other than "plausible" in analyzing a complaint. I warn them not to do this, but they usually do it anyway assuming that using a common language synonym of plausible means the same thing. Ditto when they are applying step 1 in the Twiqbal analysis. Instead of stating that the court must "disregard" or "ignore" conclusions, they often say the court should "dismiss" or "strike" conclusions. Of course, dismiss and strike have particular meanings in Civil Procedure (per Rules 12(b) and 12(f)). Of course, these misuses of language in the civ pro context provide valuable teaching opportunities. So, in providing feedback on these essays (both one-on-one and in class to the group), I can focus their minds on the importance of the language of the law and of Civ Pro in particular.

By the time we get to Summary Judgment, they (usually) understand that "genuine dispute of material fact" is a critical legal term of art that they MUST use, but that in addition to being able to regurgitate it, they need to be able to explain what it means in relatively plain language.

I also teach a skills-intensive course on employment agreement drafting which focuses (in often excruciating detail) on the critical importance of word choice, sentence structure, organization and punctuation on the clarity and enforceability of these contracts. [Basically we critically read and deconstruct a dozen or so contracts that are bad in different ways until the students can see the problems clearly. Then, when they draft, we do the same to their contract provisions -- both openly in class and in small groups until finally, hopefully, they can read their writing in a self-critical way and ID problems on their own].

The careful use of language, the precise articulation of ideas and intention, the creation of legal documents that are as clear as possible and therefore minimize uncertainty and risk for the client are absolutely critical to the practice of law -- to the ART of practice and to the lawyer's CRAFT. However, I did not really appreciate any of this until I was in practice and was litigating cases that were easily avoidable through more careful use of language.

So, I think it is important to hold students to a fairly high level of precision in their use of language, even in first year classes. A precise, carefully worded response that both articulates the legal terms of art and explains them in plain language is always what I am looking for and is what will receive "full" credit. The slightly less precise, less carefully worded response will receive less credit.

But, of course, civil procedure is an especially jargon/term of art heavy subject, so I can take this approach. I agree that in torts, where the terminology varies far more, this would be tougher.

Posted by: Brian Clarke | Dec 16, 2013 9:37:57 AM

Motivated by some of the comments, I took a second (sixth or seventh, really) look at the quoted example. I'm no longer sure what, if anything, is wrong with it. The defendant can rebut what are described as "basic fact[s]": "Hey, that wasn't my car!" Or, the defendant can rebut the presumption of negligence that a rear-end collision creates ("Ok, it was me - but look at that crazy plaintiff!").

Having isolated the source of my earlier confusion over the hypothetical answer (by looking inward, sadly), I'd give this full credit, which seems consistent with the approach I described above. Howard, what rephrasing would make this answer just right?


Posted by: Adam | Dec 16, 2013 9:35:12 AM

I think that we need to remain cognizant as to how curves affect this analysis. The question isn't whether the student is "right" or "wrong," but whether the student's answer is "more right" than other students' answers. That is, the student's answer may get the "gist" of the rule, but that student's answer may not be as good as a student who gets both the gist of the rule and the precise language that the rule uses. Giving the gist student full credit essentially flattens the curve, making an A answer look more like A-minus answers and so on down the scale. And it makes it harder to explain that distinguishes good answers from worse ones.

All of that said, I think the best answer is one that shows both precision of language AND understanding of what the arcane language means. For instance, I would generally say on an exam that:

"Under Rule 104(b), the question is whether the proponent of the fact has adduced 'proof sufficient to support a finding.' In other words, the question is whether the proponent has introduced evidence such that a reasonable jury could find that the fact is true."

Showing both mastery of the language of the rule and the plain-English idea behind it shows that the student is doing more than just regurgitating the rule's text.

Posted by: SM | Dec 16, 2013 8:47:08 AM


I have learned to my chagrin, particularly with respect to non-federal issues, that there are slight variations in the expression of ideas from jurisdiction to jurisdiction and court to court, even when discussing precisely the same thing. I do not know the specific language you were looking for, but what you say the student said sounds reasonable to me. I would not mark a student down without being sure that no respectable minority of courts use that language. I also would not teach that there is one and only one way to express a principle unless I had done research and was sure.

Of course, it is a different thing if you teach specific language, explaining that for purposes of your course, this is what the concept means and how the students should express it.


Posted by: Jack | Dec 15, 2013 10:19:24 PM

I don't know that expecting them to get the words of the legal standard right (especially when the standard is in the rule and they have the rule in front of them) is unfairly expecting them to read my mind. The question is just whether I want to be forgiving. And yes, the time and circumstances do matter, which is sort of why I asked the original question--should we expect precision even with a time crunch. I might add that while they have time to rewrite, they may be under time pressure when speaking in open court. And terms still matter.

Posted by: Howard Wasserman | Dec 15, 2013 8:33:57 PM

I think it depends on how much time you've given your students to write their exam. If you gave them a 3hour in-class exam, then "gist" is sufficient. If you gave them 48 hour take-home that should only have actually taken them 3 hours, then I'd suggest you expect more.

As lawyers, language is very important. But in real life, lawyers have time to revise and re-write. If you fail to give them that time, then you should not necessarily expect a lot of attention to detail.

In any case, you should make very clear BEFORE YOU GIVE THE EXAM, whether or not you expect them to be precise. If you don't make expectations clear, it seems unfair to penalize students ex post for not reading your mind.

Posted by: Matthew | Dec 15, 2013 8:03:05 PM

Anon: 1) Not an actual exam, but an example to illustrate what I've seen. 2) Exams are graded and the grades have been turned in; I'm now re-thinking approaches.

Paul: I'm talking about close cases, such as my example where the student said "rebut the presumption" instead of "rebut the presumed fact." I'm not talking about situations where someone completely misidentifies the area of the law.

Joe: Unfortunately, in some of the examples I'm looking at, it isn't that clear. Or they're sort-of right, if not as precise as I would like them to be. To use another example: The standard in FRE 104(b) is "proof sufficient to support a finding." That means the same thing as "reasonable jury could find." Now, if a student says "104(b) requires enough evidence that a reasonable jury could find", is that correct term? It's the wrong language, but the right legal rule/standard.

Posted by: Howard Wasserman | Dec 15, 2013 10:40:37 AM

It's an interesting question, Howard. I suspect that the answers profs would give would turn somewhat on the rule bound-ness of their disciplines. But, I'm not sure. For example, as a Torts person, I like your "gist" idea. But, my interest in developing good student writing (my exams are take-homes) would cause me to read your student's sentence and wonder whether the student actually understood what a rebuttable presumption is. Unfortunately, I suspect this is one of those times when students don't quite follow the terms of art we profs use rather easily in class, and has "filled in" the missing concepts. I might share your intuition that the student basically understands that the defendant can offer facts to rebut, but the disjunctive (redundant?) "or" is sufficiently garbled that we can't be sure. I almost thought the "or" was intended to be an "of", but the last clause following the semicolon removes this possibility.

Overall, I lean towards forcing students to be precise and minimizing my willingness to read their answers with omniscient charity. Most student answers are sorta right - but if we've taught THE right answer, we should reward that, instead. It is not uncommon for students to regurgitate ALL of the words learned in relation to a concept, in the hopes that some will stick. We should discourage that. And while it's easy to dismiss and ridicule the incantation of "magic words", I have observed many times that students (like almost everyone else) are less prone to make substantive errors of reasoning when they are very careful with language. That is, sloppy language tends to betray sloppy thinking. (Of course, ritual incantation can conceal sloppy thinking, too - so professors should give some thought to whether "merely" reciting the right test is really the skill the professor is looking for students to display.)

As I said, I think the right approach in grading turns on what it is a professor is looking for. If this was a Torts exam involving, say, the "heeding presumption," I'd give most of the credit for this, with a ding for creating unnecessary confusion. (This assumes that the analysis continued further more or less along the right track). In a civ pro exam - as I understand it - the right formulation of the test -not the "gist' - really IS the answer. Assuming that your exam doesn't give the student another paragraph to basically explain how all this would work, given the facts, I think less credit should be given.

Finally, on the "gist' of your post: This is a lesson every law professor, including myself, needs to staple to his or her course notes. Many students will not follow, without a lot of practice, exactly what these terms of art mean, and we must remember to stop and unpack them carefully and repetitively. If we patiently force students to unlearn the colloquial meanings of words the law has appropriated, rather than gliding over them quickly to get to some more interesting concept (guilty!), then we have done our job, and can rightfully insist on precise answers.

Posted by: Adam | Dec 15, 2013 10:38:09 AM

How can it be said that the students know the concepts if they don't know the language? I don't even understand the difference. If I give a student a procedural due process question, and they say that the result turns on substantive due process doctrine, how can they be said to understand con law, even if the thing they're mislabeling "substantive due process" is the Matthews test?

Posted by: Paul Gowder | Dec 15, 2013 10:18:43 AM

Isn't a four-space?
Valid term: Yes, or No
Valid application: Yes or No
VT & VA yes – 3
VT & VA no – 0
VT no, VA yes – 2
VT yes, VA no – 1
In a 2x2 box, which I don't know how to make in a blog comment, both rows involve a potential distinction. It's reflected in scores that can range from 3 to 0.
Once I feel I know which cell a response is in, though, it's primarily a matter of consistency, no?

Posted by: Joe Miller | Dec 15, 2013 10:14:51 AM

Ridiculous as it may seem, I think it is not a good move to post any portion of an actual student response and give the appearance that you are open to persuasion by blog commenters on how to grade it. Whatever you gain from it is more than offset by the anxiety it could cause the student, and you may end up hearing about/having to deal with that. I also think it's easy to come up with a hypothetical to get at the general question you're asking, so you don't really need to quote the student. There are few things students are more sensitive about than their grades.

Posted by: Anon | Dec 15, 2013 10:14:00 AM

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