Thursday, July 28, 2011

Guest Post on Teaching Legal Writing by Professor Lisa McElroy

[Below is a guest post by Drexel Law Professor Lisa McElroy.]

Last week, Bryan Garner published an editorial in the New York Times about the importance of good legal writing pedagogy; his piece was part of a series on how and whether law school education should change for the better. 

At first, when I read Mr. Garner’s editorial, I was pleased; after all, lawyers and judges have been saying for years that they look first to a young lawyer’s legal writing skills when deciding whether to hire her.  Echoing this sentiment, Educating Lawyers (better known as the “Carnegie Report”) and CLEA’s Best Practices for Legal Education, both published in 2007, called on the legal academy to improve and increase offerings in legal writing and other legal skills.  That’s because, as Garner notes, ”[C]lear writing equates with clear thinking.”  (And I’ll go even further to say that most budding lawyers don’t know exactly what they think until they try to write it down).

I should say that I am still glad that Garner brought national attention to the fact that law schools undervalue legal writing.  Some of my colleagues in the legal writing discipline, however, have commented to me that Garner missed an opportunity (thanks to word count restrictions, perhaps?) to point out that one easy way for law schools to improve their students’ legal writing skills is to place more value on the legal writing professors who teach them.

As Garner acknowledges in his piece (“of all law-school courses, legal writing is both the single most time-intensive subject and the least respected”), teaching legal writing is a very hard job.  It’s a different job from writing legal scholarship (although many legal writing professors do both, whether purely by choice or as part of a tenured or tenure-track job), but it is at least as rigorous.  Why?  Because legal writing professors must take on a number of job responsibilities that their podium colleagues need not.   For example, a typical legal writing professor has an average of 41 writing students a semester, and she (for, as the often-used moniker “pink ghetto” suggests, the vast majority of legal writing professors are women) meets with each of them one-on-one at least twice, for an average of 74 minutes with every student (even though, as Garner correctly states, “there is a built-in bias against one-on-one teacher-student time”).  The average legal writing professor  grades and comments extensively (usually to the tune of an hour per student per assignment) on more than 1550 pages of legal writing each semester, much of it by students who have no experience writing in the discipline and so need an enormous amount of guidance.  She bases these writing assignments on new hypotheticals most semesters, sometimes because of changes in the law, sometimes in an effort to prevent cheating, and so must teach herself the law, create new teaching materials, and prep entirely new lectures based on the new assignments.   She often writes more letters of recommendation than other members of the faculty (because students tell her that she’s the only professor who “knows them”) and spends more time in non-academic discussions with students (for the same student-reported reasons).  Of course, she is also involved in the typical law school service responsibilities, serving on committees and attending faculty meetings.

And all of these statistics are not speculation.  Every year, the Legal Writing Institute, a professional organization with over 2000 members (disclosure:  I am member of the LWI Board of Directors) and the Association of Legal Writing Directors (disclosure: I am a past member of this organization’s Board, as well) conducts a survey of legal writing programs across the country, a survey with a remarkably high response rate (this year’s was 94.5%, with programs from 188 law schools responding). 

But here’s the rub:  As that same survey describes, legal writing professors are typically paid far less than their podium colleagues.  The average legal writing professor today earns $73,773, regardless of number of years teaching;  a third of legal writing directors earn (on average) $26,000 less than entry-level podium faculty members at their schools.  An average director has been teaching in law schools for 15 years.

And that’s not all.  Legal writing professors may occupy less desirable office space, they may be prohibited from participating in faculty governance (even on matters, like curriculum, that directly concern them), and they often carry titles like “instructor” or “lecturer” rather than “professor.”  As reflected by the fact that only 18 law schools primarily employ legal writing faculty as tenured or tenure-track professors , very few have the job security that their podium colleagues enjoy.  Again, as Garner notes, the job of teaching legal writing is the least respected in most law schools.  And what Garner does not say explicitly?  That lack of respect often trickles down:  from administration, to podium faculty, to students (one of my darkest days of teaching was when I conferenced with a first-year law student, encouraging her to put more effort into legal writing; she replied that she didn’t want to take time away from her “real courses.”)

How can we resolve this disconnect between effort, importance, respect, and reward? Because, without these, “you have serious educational pathologies.”  Different commentators have offered different answers.  I believe (as do many of my legal writing colleagues) that Garner’s editorial in a forum like the New York Times is a good start; certainly one path to beginning to solve the problem of a lack of emphasis on legal writing is to publicize the problem in a widely-circulated publication.  But we know that naming the problem is not enough on its own; after all, even in the wake of the two most-read reports on legal education, the ABA Council on Legal Education still discusses eliminating the sections of its accrediting requirements that protect legal writing faculty and their academic freedom. 

Compensating legal writing professors fairly and equally (with salary, with job security, with voting rights, and with allotted course credits) would also go a long way towards engendering respect.  Certainly financial and curricular budgets will be strrained, but because compensation is a key factor in how any professional is perceived, administrators should be motivated to solve that problem (and will likely attract some of the very top teachers in the country as a result).

Finally, law schools could emphasize from day one that no legal education is complete – or even sufficient – unless everyone in the law school stresses that theory and practice go hand in hand.  As one commentator in the New York Times series commented, “Law school is not a trade school.”  Without a grounding in theory, our students will not know how to think like lawyers.  But without an equal grounding in practice and writing, it’s possible that they will not learn to think in a logical, systematic way at all.


Paul Scott said...

I am finding difficulty distinguishing these complaints from the similar complaints of clinical faculty.

I don't disagree with you that legal writing education at law schools is poor - my instruction, if that is what you would call it, was from a third-year. I am, however, not sure I agree that it is particularly important. I am sure law firms would prefer not to have to spend their time and money training people to write, but I don't see why law schools, as academic institutions, should particularly care about the financial interests of law firms.

michael a. livingston said...

One problem at my school (Rutgers-Camden) is that legal writing means largely "litigation writing" I asked students in my legislation class if they had drafted a statute, a contract, anything. None had. Don't we need to broaden the skills taught before according additional status?

Pretty Lady said...

I don't see why law schools, as academic institutions, should particularly care about the financial interests of law firms.

Hello? Because the purpose of law school is to prepare their students to find themselves employment at law firms, which will not be hiring them if they are not solvent? Or is there some purely esoteric reason for attending law school of which I am not aware?

And in which case, should law professors not expect to be financially compensated for their purely academic efforts?

Paul Scott said...

Pretty lady,
Your view, then, is that law schools are in fact trade schools. I don't think you will find many law schools that agree with your mission statement. I suspect, instead, most will rightly consider themselves academic institutions. The purpose of an academic institution is academics, not job preparation.

If your mission statement was correct, you would find the bulk of law school curriculum directed towards preparing students to work. That is very far from the case.

Paul Scott said...

"Don't we need to broaden the skills taught before according additional status?"

Even if you did broaden the skills taught, there remains an important difference between a law professor and a legal writing instructor. The realm of legal writing is static. To the extent one would even consider it a field, it is a field to which it is impossible to add. Even, as both the blog post above and the referenced editorial suggest, it is correct that the actual act of teaching legal writing takes more time than "podium" teaching, what is being taught is the same thing year after year. There is no need to be "on top of your field" to successfully teach legal writing since there is no field.

The editorial and blog post both make the mistake of conflating importance with value. The pool of people who are good teachers and are willing to make the exchange of better quality of life for money is large. The pool of individuals capable of meaningful contribution to an academic specialty is much much smaller.

Just because two persons are both teaching at the same law school and even if you accept that both a equally good teachers and even if you further accept that legal writing is "more important" that is no reason to expect that the person teaching legal writing should be getting equal pay, voting rights, tenure, etc.

Tam Ho said...

Legal writing profs should arguably be paid more than their podium counterparts. For theirs is the supremely unenviable and frustrating task of having to compensate, in the overwhelming majority of cases, for most college graduates' inability to write at the level of, well, a college graduate, or even high school senior for that matter. Saying that these teachers teach "legal writing" is misleading because it implies the teaching of only an incremental skill when, in fact, they have to account for the fundamentals that most law students lack (a fact that sadly doesn't change when they become lawyers because it is impossible to internalize good writing in one year). Not only do these students "have no experience writing in the discipline" but they have woefully inadequate experience and skill in writing, period.

The problem is not unique, of course, to legal education. The root problem is obviously that high schools and colleges advance and graduate students without requiring them to achieve sufficient proficiency in writing. However, until that root problem is solved, legal writing profs. are stuck dealing with it and their compensation needs to take this into account.

Bob Hurt said...

I liked the points the author made: "Law schools treat writing professionals like red-headed stepchildren, underpaying, overworking, ignoring, and shirking us. Waaaaaah!"

So, QUIT, and at your next school get more money or don't take the job. I disagree that you have less value or importance than those who catalogue or analyze law. Proof? Just look at what the Supreme Court has written. HORRIBLE WRITING, generally, with unconscionably long, inscrutable, run-on sentences. Stab me in the eyes with a barbecue fork.

On top of that, law school writing teachers don't do that good a job because THEY never learned some critically important fundamentals. Examples? Okay:

1. Omit passive voice.
2. Omit to-be verbs except when expressing identity.
3. Limit sentences to 20 words.
4. Limit paragraphs to 5 sentences.
5. Use clarifying headings liberally to set apart and identify text.
6. Use enumeration for series of more than three items.

Look at a few legal briefs, law journal articles, and pleadings. There you see egregious violations of these simple fundamentals. Clearly, lawyers don't write for readability, likely because they never learned how. Who bears the blame for that?

The real point here? Why does their inability to write properly NOT interfere with their getting lawyer jobs? Maybe because nobody cares. Lawyers seem to like inflicting pain on their adversaries... such as by making them read bad writing.

Bob Hurt said...

I forgot one point:

7. Put subjec, then verb at the beginning of the sentence.

Walking Green said...

I am not a lawyer or a law professor and how I ended up on your blog is too long of a story and not needed to justify adding my insights to your discussion. I am a Dean of Academics at a very small college.

The point you seem to be missing, aside from the deterioration of all written discourse and argumentation in this country is this, the missing link in logic and critical thinking is, in fact, the ability to clearly and precisely frame your argument and lay out your reasoning in written form.

It is only when you review and edit you own thinking that flaws and omissions become clear. I cannot imagine that a competent and astute lawyer could be developed without this fundamental skill.

Bob Hurt said...

Regarding logic, critical thinking, and writing style - no amount of good writing style can compensate for bad or missing logic which critical thinking can help illuminate. The key: illuminate bad logic before an adversary or judge does. Review your own premises/beliefs, and purify them through the filter of case law. Play adversary and destroy your own arguments by shedding a different light on the facts. Realize that even good logic appears bad because of poor writing skills. If you wouldn't wear beach attire to court, why insult the court with convoluted mangled written expressions?

Try omitting to be verbs from all oral communication for a week ane watch how that can breathe new life into your writing.

Tom Croos said...

I must say that I am always glad Garner drew national attention to the law schools underestimate the legal drafting. Some of my colleagues in the discipline of legal writing, however, have commented to me that Garner has missed an opportunity (thanks to word count restrictions, perhaps?) To emphasize that an easy way for schools legal right to improve their students' writing is to put more emphasis on legal writing professors who teach them.WOW Items Gold Buy WOW Items Cheap WOW Items Tera Gold Buy Tera Gold Cheap WOW GoldBuy WOW Gold WOW GoldTera Gold

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