Legal drafting instead of persuasive writing?
Tell me what you think.
What if the first-year law-school curriculum covered legal drafting intensely and required students to negotiate and draft one serious transactional document as well as some shorter ones? What if it required them to study legal drafting instead of persuasive writing?
Or, more moderately, what if the focus on the first-year legal-writing course was memos and transactional documents instead of memos and briefs? I mean what if the first-year course did cover persuasive writing, but only briefly, the way some first-year programs now cover transactional drafting?
And what if the legal-drafting component of the first-year course was a major part of the course, as brief writing and oral advocacy are now, to the point that first-year students participated in a negotiating and drafting competition instead of a moot-court competition?
Perhaps what I'm really asking is which is more important to the development of a good lawyer: persuasive writing or legal drafting?
So maybe we should sponsor both types of competitions and allow first-year students to choose what they wanted to study after memos: briefs or transactional documents.
I'm proposing a paper on this topic and I'd love to hear what you think. What are the pros and cons?
5 Comments:
Professor -
Great idea. As a trial lawyer, I do a lot of persuasisve writing. But at the time of settlement, its drafting a settlement agreement that pays off in the end.
Jonathan Stein
Interesting idea. But, why is it an either/or proposition. Though it's often treated as an obligatory course taught only because students are expected to have it, why not include legal writing courses throughout three years of law school. That way, students will get a substantial amount of persuasive writing, and will also spend time learning transactional writing. Legal writing is one of the primary tools of the trade, yet it is still taught poorly in many schools (poorly paid adjunct faculty - or worse, upper level students; one year requirement during first year; limits on type of writing taught; etc.)
I am 55 years old & just completed my first 1L semester. For 12 years of the career that ended and eventually launched me here, I wrote professionally. I wrote almost exclusively for a well-regarded international magazine that fell somewhere between a technical journal and a trade magazine. In my tweleve years I wrote most of the magazine, and then, as it grew, edited it and ended publishing it.
This year the ABA auditors visited my law school on their regular seven-year visit. The student-auditor session focused almost entirely on the problems of legal writing courses. The ABA folks told us that LRW is an awful problem everywhere.
My experience with the course here was that it was a waste of time for everyone. Your comments, and those of anonymous, I'm afraid, are more of the same.
As a writer, I learned to write by writing. Academically, the course that helped the most wasn't even a writing course. It was an English lit course that I took at Columbia. The drill was that we would read a book a week, and turn in a 3-page paper on any topic we pleased, on the Monday that we would start to discuss the book (after reading it the previous week).
We would get our paper back without fail on Thursday, and usually the professor's written comments were longer than the text of the paper--and were focused on our writing.
When I started writing professionally, my editor would tell me what he wanted and when he wanted it. When I gave it to him, he would say, this is s---, AND HERE'S WHY. He would then go through the whole piece and show me my errors. "Now do you see what I want?"
This process would be repeated, rewrite after rewrite, hour after hour, day after day, until I learned how to write. I don't believe learning how to write is rocket science. It just takes a lot of practice with immediate feedback.
Nor do I believe that legal writing is any different than any other writing. It is a truism that a very good journalist can write about anything. As publisher of our magazine, whose industry manufactured an important product that found its way into kitchens, I would myself be interviewed occasionally by mainstream journalists.
I remember the woman who called who was doing a piece for This Old House magazine. Latter, exchanging trade talk, she told me that she was actually a staff writer for People magazine, but that they were in a pinch and called her to write this piece.
The piece she wrote would have seemed to require an intimate knowledge of polymer chemistry, specialized architectural concepts, industrial plant design, large and small business concepts, and a thorough knowledge of specialized tooling and fabrication methods.
The point is that she nailed it in a way that was breathtaking, especially given what I knew about her starting point. It could have been read by a research chemist, a fabricator, a plant manager or a homeowner with an equal sense of enjoyment and engegement.
As an editor, I merely replicated what had been done to me. It was rare not to have a passably good writer in a week.
The problem with the law school course was that it wasn't a writing course. We didn't write! We read about writing (I can't call the Red Book an improvement on my Strunk and White, which is suitably in tatters, but only because of snobbery. It is a great book.), but we actually wrote more in other classes.
By grafting legal analysis onto the stylistic forms (memo, brief, etc.) it only muddied waters that my other courses were busy clarifying.
My belief is that writing is writing, and that includes so-called "legal writing." My humble suggestion is, give the student the "facts". Give him the "answer" or "answers" to the question. Give him the cites and tell him which arguments they support. Pull as much legal analysis out as you can.
Then let him write! Two, three pages a class, and give him immediate feedback--on his writing, not on his legal skills (he'll get that, abundantly, in his other courses).
One might even wonder whether a writing teacher might be a better choice to teach somebody how to write plain english than a lawyer.
I also would add the caveat that I don't believe that writing "exercises" (writing or correcting sample sentences or paragraphs)is writing. Throw 'em in the deep end. First day of class assign thre-page memo due in a week. If you're there, they won't drown.
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