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Kosse, S H; ButleRitchie, D T --- "How Judges, Practitioners and Legal Writing Teachers Assess the Writing Skills of New Law Graduates: A Comparative Study" [2004] LegEdDig 12; (2004) 12(3) Legal Education Digest 17

How Judges, Practitioners and Legal Writing Teachers Assess the Writing Skills of New Law Graduates: A Comparative Study

S H Kosse & D T ButleRitchie

[2004] LegEdDig 12; (2004) 12(3) Legal Education Digest 17

53 J Legal Educ 1, 2003, pp 80–112

Members of the legal profession know that lawyers need good communication skills. As a result, virtually every law school has developed a more or less comprehensive legal research and writing program. But do these programs effectively prepare new law graduates for their work as legal professionals?

Starting with the methodology developed by the Law Schools Admissions Council (LSAC) to evaluate the elements of good writing, the authors surveyed members of the academy, bench and bar to see what they thought of the writing skills of law graduates. They received responses from 276 members of the profession, and the good news is that there is widespread agreement among all sectors about what constitutes strong written work. Surprisingly, though, there was also widespread agreement that new lawyers do not write well.

In 1994 the LSAC published a report, ‘Defining legal writing: an empirical analysis of the legal memorandum’, which detailed the findings of a three-year research project designed to identify the elements essential to good legal writing. Using the 1994 report as a starting point, the authors looked at whether these previously identified elements remain the most important to legal writing teachers in law schools.

A questionnaire was designed based on the 1994 LSAC survey, which sought to accomplish three objectives: first, to identify what each group considered to be the essential elements of good writing by asking an open-ended question to that effect; second, to try to quantify the responses by having the respondents rank the elements generally acknowledged as being important parts of the various sections of appellate briefs and memoranda. The goal with the ranking was twofold: first, to compare the rankings of the three groups to see if there were any differences in what judges, attorneys, and legal writing teachers thought were the most important elements. The second goal was to explore the reasons for any differences observed.

After collating the data collected and having a professional statistician evaluate the numbers, the themes that began to emerge from raw statistics were analysed. The data suggested a broad consensus about what constitutes good legal writing and a widely shared perception that most lawyers, including most new lawyers, do not write well. This implied that, while most respondents were clear and consistent in their evaluation of writing, the skills of new law graduates are not necessarily where members of profession expect them to be. This was somewhat disconcerting, because it suggested a disconnect between the pedagogy in writing classes and the results that professionals in the field see. In other words, since the survey confirmed that legal writing teachers are teaching what members of the bar and bench think important, there was a need to explore exactly what was hampering the skills of new law graduates.

These results seem to destroy a well-entrenched myth that academics do not know how to teach what lawyers do, including, of course, writing and other practical skills. In reviewing the data, as well as comments that respondents forwarded, it became clear that a broad swath of legal professionals think that members of the profession do not write well. While this belief may be a by-product of the perception that new members of the profession do not write well, there may be more to it.

Based on reviewing the literature on skills pedagogy in law schools, talking with colleagues and culling through the open-minded responses from the survey, the following list of possible reasons was compiled. Lawyers do not write well because: (1) they did not take a legal writing class in law school; (2) law schools devalue legal writing classes; (3) they do not get enough practice in law school, (4) poor writing promotes their economic interest, (5) inertia, (6) deficiencies in their early education; (7) the profession offers very little continuing education on improving writing skills; (8) time and financial constraints; (9) they do not know they write badly; (10) the Generation X factor; (11) technology; and (12) they do not write regularly.

Until recently lawyers’ writing skills were generally acquired and honed on the job or not at all. This certainly explains why some members of the profession do not have the kind of skills their peers would like to see them exhibit. There is a perception among some, many in the academy even, that skills pedagogy is fluff. The impact this has on legal writing cannot be overestimated. Part of the problem is that most of the critics do not understand what is involved in a properly staffed, adequately funded legal writing course. Legal writing classes are not remedial English classes with a primary focus on grammar, punctuation, and spelling.

Perhaps the real problem is that there should be more writing-centred courses in the curriculum of every law school. Most schools have some sort of advanced writing classes that upper-level students may take as an elective in lieu of a bar-related course. Most experts would agree that writing is difficult and the surest way to improve as a writer is through practice.

Several authors have suggested that attorneys purposely use legalese and muddled organisation to substantiate their billings and enjoy a certain power in being the only ones to understand what is written. Anecdotal evidence suggests that most of us have seen lawyers write with the purpose of obfuscation, either to pump a client for billable hours or to confuse and frustrate an adversary.

While the idea of eliminating arcane usage has taken hold in some circles, other legal professionals continue working and writing in the same ways they always have. This is one important reason why good legal writing is so vital during law school. We should foster good legal writing habits from the very beginning in the apparent knowledge that educators from grade school through college have resigned themselves to their students’ poor writing.

State bar associations do not focus on the writing skills of their members. It is hard to know why there is such a dearth of writing programs when a clear majority of our respondents think lawyers’ writing needs improvement. Most lawyers are extremely time and expense conscious — with good reason. In an increasingly competitive legal market attorneys look for ways to streamline their work. An attorney’s work is seldom meaningfully edited. With virtually no feedback, attorneys become trapped in long-entrenched writing habits that may not be good.

Virtually every generation in recorded memory has been criticised by its predecessors as lazy and self-centred. That said, the cultural and educational background of many young lawyers has not prepared them for the sort of extended effort required consistently to produce high-quality work. Most attorneys today have computers on their desks and can work on documents as time allows. But this convenience and efficiency comes at a cost. Because writing is hard work, lawyers will invariably try to cut corners.

Writing is a skill that requires regular practice. Some attorneys, especially those in distinct court practice and certain specialty areas, simply do not get many opportunities to write, and they face a real challenge when the need to write arises.

Given widespread agreement that new lawyers do not write particularly well, what should be done? Certainly the legal academy should continue — and even accelerate — movement toward solidly established legal research and writing programs. Those last bastions that relegate writing and skills classes to adjunct instructors or third-year students need to be brought into the fold. More schools need to move toward the tenure model for writing and skills teachers. In addition, schools need to offer more upper-level writing courses and to integrate writing components into more and more doctrinal classes. In short, increased status and more resources need to be accorded this most important skill.

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