Legal Commentary

Last year, Prawfs had a number of good discussions on various aspects of legal writing programs, including posts of who should teach legal writing, the components of a legal writing program, and an exchange over the use of 3L writing instructors. I thought I would return to the state of law school's legal writing programs, spurred by an email I received from Catherine Wasson, the Director of Elon's Legal Research and Writing Program about the 2008 Law School Survey of Student Engagement (LSSSE).

The 2008 LSSSE has some interesting things to say about law schools' legal writing programs and the law school curriculum in general:

In the crucial area of legal writing, the 2008 findings are more complex and unsettling. Nearly half of responding students reported that they have not had enough practice in developing their legal writing skills in situations matching or approximating real-world legal practice. At the same time, students reported that such practice-oriented writing assignments were particularly effective in enhancing their legal research and communication skills. So, while in aspiration much of legal education is starting to move beyond an exclusive focus upon ?thinking like a lawyer,? in practice the schools generally have a long way to go to make those aspirations real achievements. * * * *

 

Innovation is essential to making sure the law school curriculum as responsive to the rapidly changing, increasingly complex legal environment. At the same time, effective legal training must be rooted in such timeless fundamentals as helping students acquire the strong conceptual, analytical, and writing skills demanded by the profession. Despite near-universal agreement on the value of these skills and competencies, legal writing, for example, is typically featured primarily in the first year, and viewed by students as a sidebar in their doctrinal classes.  The low value placed on writing is sybolized by the facts that relatively few legal writing faculty are tenured or in a tenure-eligible role and are often paid less than other faculty members.  Nonethless, good lawyers must be good legal writers; it is a skill that will serve students well as they transition to the practice of law according to results from the After the JD study.

 

In many ways, the observations of the 2008 LSSSE Survey reaffirms conclusions reached by the ABA Survey of Law School Curricula, the Carnegia Foundation's Educating Lawyers book and the Best Practices in Legal Education book, which have all urged law schools to adopt more professionalism and practice-oriented approaches to their curriculum.  Educating Lawyers particularly emphasized the unique opportunities for simulated practice in writing courses, explaining that the "teaching of legal writing can be used to open a window for students onto the full complexity of legal expertise."  Many commentators have picked up the call of the Educating Lawyers' recommendations as it relates to Legal Writing.  See, e.g., Erwin Chemerinsky, Rethiinking Legal Education, 43 Harv. C.R.-C.L. L. Rev. 595, 597 (2008) (urging first-year legal writing programs to focus on writing assignments "more likely to be seen by a larger number of students in their early years of practice.").

So my question.  What are law schools doing to reconceive the traditional legal writing programs?  Are schools moving away from the appellate brief and argument to structure classes around more practical problems that lawyers are more likely to see in their eary years of practice?

To get things started, Southwestern's legal writing program has for many years been at the vanguard of legal writing programs, and recent changes seem to really take to heart the calls from Carnegie, Best Practice, and LSSSE.  

Southwestern's program -- titled Legal Analysis, Writing, and Skills -- covers objective and persuasive legal writing and research, but also includes focused instruction on professionalism, statutory interpretation, client and witness interviewing, meet and confers, client counseling, email drafting, as well as advanced legal reasoning and case synthesis.  The program is taught by full-time dedicated faculty, who are either tenured or on long-term contracts, who have committee and voting responsibilities, and who are paid at rates among the highest in the country (for the benefits of this approach, see Jan Levine's comments to the earlier posts and the ABA's Sourcebook on Legal Writing Programs). The course is graded and is for six credits (three each semester). 

The faculty has also recently approved a new innovation that creates three-tracks in the spring semester.  Instead of just having appellate advocacy, our Fall 2009 entering students will have the opportunity to select one of three tracks: (1) negotiation; (2) trial/pretrial practice; or (3) appellate advocacy.  Each track will provide instruction on persuasive writing, but then will focus on either negotiation skills, pretrial litigation skills, or appellate advocacy skills.  The guiding idea is that the writing program should prepare our students for summer externships, jobs, and eventual graduation by including more real-world experiences. The plan -- although not yet fully formed/implemented -- is that these three legal writing tracks will lead into the school's three honors programs (the negotiation, trial advocacy, and moot court honors programs).  This seems exciting to me.  I'm aware of no other first-year legal writing program that provides students the opportunity to specialize or select a track.  I would be interested though in hearing if other schools are considering this kind of approach.

Students can then get advanced legal writing instruction through upper division advanced writing classes, a number of simulation/practical skills courses (such as pretrial civil practice, business contract drafting, patent drafting, drafting licensing, video game, technology agreements etc.), and ultimately conclude their law school career with a capstone course (e.g., capstones in Civil Litigation, Entertainment Law, Employment/Labor Law, Criminal Law, Mass Torts etc.).  This is in addition to traditional seminars. Each capstone course requires substantial writing instruction in simulated real-world experiences.