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.