A new article in Capital University Law Review by Appalachian School of Law Professor Stewart Harris, Giving Up Grammar and Dumping Derrida: How to Make Legal Writing a Respected Part of the Law School Curriculum, 33 Cap. U.L. Rev. 291 (2004) (available on Lexis and Westlaw) presents, in its curmudgeonly way, some significant calls for reform in legal writing instruction. Some of what Harris says applies equally to legal research instruction, and gives me a clearer notion of what I was struggling toward in this posting.
Specifically, we should: (1) stop teaching basic grammar and writing skills, except by example; (2) stop coddling students with endless one-on-one conferences; (3) use oral commentary and standard models instead of providing written "feedback" on individual papers; and finally, in the time we gain by instituting the first three reforms, (4) concentrate on producing traditional legal scholarship, rather than publishing articles that attempt to make the teaching of Legal Writing a "scholarly" subject, or that serve as mere soapboxes from which to broadcast our discontent. If we take these four simple steps, we will reap immediate benefits in efficiency, efficacy, and job satisfaction.
(1) Harris illustrates his first point by juxtaposing excerpts from two writing textbooks, one from a Legal Writing textbook, the other from an eighth-grade textbook. The reader gets the fun of guessing which is which, but I'll clue you in here:
A paragraph is a group of sentences dealing with one topic. You learned many years ago to recognize a paragraph because the first line is indented a few spaces from the left margin. Indentation is the visual signal that a new idea is about to be discussed. A well-written paragraph also has three internal characteristics: unity, coherence, and development. Unity means that only one idea is discussed in the paragraph. Coherence means that the sentences are arranged logically and are connected by the use of transitions, pronouns, and the repetition of important words. Development means that enough specific information is given so that the idea is completely understandable.
Law school writing textbook:
Paragraphs exist for many reasons. First, they help writers organize what they are writing. Second, they help readers see and understand that organization. Third, they give readers a psychological, as well as a logical, break.
Writers need paragraphs to help them stay in control of what they are writing. Paragraphs are like tidy boxes in which to sort information. They make writing a manageable task.
How does Harris teach basic grammar skills? He doesn't.
I put the following statement into my syllabus: "The quality of your writing--grammar, style, spelling, etc.--will not be the focus of Appellate Advocacy class sessions or conferences, but it will be vitally important to your grade." There you have it: short, simple, even pithy. Students are responsible for good writing, but they are not going to learn it from me. I will be too busy teaching them how to conduct an appeal.
Harris expects that some of his students paid attention in school and know how to write; others will be motivated to teach themselves (much as students are expected to do in their other 1L classes). (His fallback, of course, is that Appalachian School of Law has hired a professional writing instructor to direct its Writing Center; students who need tutoring can go there.)
How does this apply to legal research instruction? Instead of spoon-feeding students with the traditional "big parade o' sources" and mind-numbingly tedious treasure hunt assignments, we could actually expect students to teach themselves--either by reading a good legal research textbook, or using the CALI exercises, or watching a video. This would require a fundamental rethinking of the way many of us teach legal research, but go with me on this--we're not finished yet.
(2) Instead of one-on-one conferences, Harris teaches writing by model and by group discussion.
Many Legal Writing professors seem to consider it their sacred duty to go over each draft memorandum or motion in minute detail, and to perform what appears to be a complete, line-by-line edit. Paragraphs are moved. Words are changed. Entire sentences are rewritten. And all of this is done with pens using green ink to avoid upsetting the students' delicate sensibilities, or with soft, gentle pencils, to facilitate the further editing of the editorial comments themselves.
Moreover, providing extensive written commentary is mind-numbingly repetitive. Nearly every paper, one after the other, requires identical admonitions to avoid the passive voice, to use simple, declarative sentences, and to maintain a straightforward organizational scheme. At least one paper in three requires correction of it's improper use of apostrophe's.
Here again, Harris's alternative approach is easily adaptable to legal research instruction:
In the practice of law, when a procedure is time-consuming, repetitive and often counterproductive, it is time for a different approach. The same is true in academia. Fortunately, I have a proposal: we should speak to our students about their papers en masse and use models as appropriate. In my writing classes, instead of writing the same comment dozens of times, I make a single, master list of the most common errors, whether expository or analytical. This is relatively quick and painless. Indeed, the same types of errors tend to crop up, semester after semester. I then discuss these common errors in class, using anonymous examples from student papers....
During my classroom discussions, I also often use models. In Appellate Advocacy, for example, I have my students submit detailed argument outlines well before they submit their first briefs. I select a good student-submitted outline and project it up on the whiteboard, and we edit it together, in class. By the end of the class, we have not only had a spirited and valuable discussion, we have also done so efficiently. Instead of having the same discussion fifty times, I have had it once, with fifty participants. Instead of being bored and irritable after the twenty-seventh repetition, I have been fresh and, I hope, effective during the single class discussion.
I will leave the translation to legal research instruction as an exercise for the reader.