Legal Writing Curriculum in Need of Revision

BY KATIE MAPES

As many of you may know, the tireless curriculum folks spent the summer ceaselessly working to morph the moribund and dated First Year Lawyering class into, well, pretty much the same thing except with a longer and more cumbersome acronym. They left no stone unturned, spared no expense, and found no textbook too inane and patronizing. Take this gem, for instance, from page 291 of Neumann’s Legal Reasoning and Legal Writing (and if that title alone isn’t an example of snappy rhetoric, I don’t know what is):

“Compare a law school examination to a computerized cash register in a grocery store. The cashier places each item above an electronic ‘eye’ that ‘sees’ the item’s universal product code and rings up the price. If the cashier does not hold an item at exactly the proper angle, the eye sees nothing and registers nothing. The cashier is able to try again and again and, if necessary, can even ring up a purchase manually. Like the electronic eye, the teacher will give you credit for what you show in the proper form, but, unlike the cashier, you get only one chance.”

Why, thank you, Neumann! Now, I too, have the pointless and irrelevant analogy necessary to write brilliant exam answers. You know, you can compare it to a ‘law student’ repeatedly banging her ‘head’ against her ‘desk.’ Oh wait, that’s actually happening.

Perhaps I’m being unfair. In fact, probably I’m being unfair. The First Year Lawyering program is not charged with an easy task, and the cards are stacked against it before class even starts, at least in terms of gaining students’ attention and respect. Let’s face it. Contracts sounds serious. Torts sounds serious. Criminal Law sounds like, well, like your favorite legal procedural, but odds are it’s a serious one (Ally McBeal fans, you are irrelevant here). First Year Legal Research and Writing, for once through no fault of the program, does not. The fact that the class is taught pass/no pass and by someone who, however, qualified they may be, doesn’t have the title of “professor” doesn’t help. It may not be fair, but it’s awfully hard to take seriously.

However, this is a school populated by neurotic perfectionists. If anyone can do it, they can. No, it wasn’t the students who pushed the FYLRW program into ineffectiveness. Nor was it the general outline of the course, which, honestly, is not bad. I don’t think anybody objects to writing legal memos, a skill we all know we’ll need, or to learning legal research, which, it’s quickly apparent, is quite different from most of what we did as undergrads. The problem lies not in the program’s goals but in the condescending and simplistic execution.

I’ve already mentioned the textbook, Legal Reasoning and Legal Writing by Richard Neumann, but its sheer awfulness deserves to be reiterated. For one thing, it’s filled with poorly written explanations and confusing analogies, which is pretty dire in a text meant to teach clarity and concision. Worse still is the simplicity of outlook that pervades it. End of chapter exercises ask you, for instance, to identify what is a “fact” and what is a “characterization” and then the teacher’s guide supplies a one word answer to this, as if it’s a black or white dichotomy or even an answerable question. Nothing is too complicated to be reduced to a not-particularly-snappy acronym, and the outlining of rules which, it should be said, are already written in plain English, is treated as a) a panacea bound to solve any analytical conundrum and b) something worthy of spending entire sections on.

Maybe this, too, can be overcome. It’s a little annoying to spend $40 on a textbook you’re only going to open once or twice, sure, but I went to college. I’m used to it. That the air of general condescension has spread into the curriculum as a whole, however, is unforgivable. Students used to being treated like intelligent, responsible adults are treated like children that have to be manipulated and cajoled (not, by the way, a strategy I’ve found to be particularly effective with actual children, either). We’re told that our names will be left on the memo drafts that are to be workshopped in class to ensure people put effort into them. We’re told to bring our laptops but to put them away until we have a specific use for them. And most every problem is presented in the same painfully slow and inexcusably simplified fashion that it is in the textbook, an approach made doubly ludicrous by its contrast with the generally robust law school curriculum that urges probing examination and diligent questioning of even the simplest issue.

As Neumann no doubt says somewhere in his monster of a legal writing textbook, “if at first you don’t succeed. . .” The program may have been reworked a year ago, but it’s time to do it again. This time, however, there’s no need to change how the class is structured or the title and acronym (although seriously, FYLRW is supposed to be an improvement?). In fact, here’s a simple three point plan:

1. Treat students like adults. I know, I know, it goes against the grand tradition of these sorts of classes everywhere, but it just has to be done. Sit in on a well-reputed Property or Contracts class for a day and observe. How does the professor talk to students? What kinds of questions and perspectives is she raising? For God’s sake, what speed is the class going at? There’s no reason why a legal writing class should be any slower or deal with any fewer issues, and there’s certainly no reason why the students should be treated as if they have less intelligence. Kind, caring and non-threatening does not equate with slow and simplistic.

2. Get rid of the textbook. No, don’t replace it. Jettison it. Nobody ever learned how to write by reading a textbook, and let’s face it, for the most part nobody’s reading it anyway. People learn by practice and example, and now that we don’t have to waste time going over Neumann’s Inanity of the WeekTM, there’s plenty of time for both.

3. Connect the assignments to classes the students are taking. There’s already different memo assignments for various sections that attempt to do this (with varying degrees of success – just ask the professor what he’s covered and what he hasn’t, people). But it should be expanded to the research assignments and the hypotheticals as well. Why? First, it’s a lot easier to engage yourself intelligently in an issue when you know the context. Second, it would give students a chance to think analytically about the issues they’ve covered in class and a chance to write about them, something currently lacking in the curriculum.

Writing is important in any profession, and especially so in this one, I think. There’s no excuse to teach it in a shoddy and haphazard way, and there’s no excuse to marginalize it. The curriculum desperately needs to be revised, before next year’s 1Ls find themselves reading “See Spot outline the UCC. Outline, Spot, outline!” And while that may make for an entertaining column or two, the students of this university deserve better.

Katie Mapes, 1L, needs to go finish her legal memo now.

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