Price, J E --- "Imagining the Law-trained Reader: The Faculty Description of the Audience in Legal Writing Textbooks" [2007] LegEdDig 19; (2007) 15(1) Legal Education Digest 52
Imagining the Law-Trained Reader: The Faculty Description of the Audience in Legal Writing Textbooks
[2007] LegEdDig 19; (2007) 15(1) Legal Education Digest 52
Marq U L Sch Legal Studies Research Paper Series, Research Paper No. 06–36, 2006, pp 1–38
This article examines the depiction of the law-trained audience in some popular first-year legal writing and research courses and finds that they lean too heavily on such overgeneralisations. Specifically, these textbooks offer surprisingly consistent messages about lawyers’ personalities, namely, that most lawyers are extraordinarily impatient with other people (even in their thinking and reasoning processes); aggressively critical; and conservative and formalistic in outlook. Such generalisations are an inadequate and inaccurate description of the real ‘law-trained readers’ that students will encounter in practice — individual human beings, working in complicated institutional and social frameworks, and reading for different purposes at different times. The ‘law-trained reader’ is too diverse and complicated to be captured by such generalisations about the purported shared traits of human beings who have completed law school.
In this article, I argue that legal writing teachers should avoid relying on such over-generalisations, for at least two reasons. First, engaging our students in thinking and discussion about the nature of the audience for whom they are learning to write is more likely to help them learn to write well than relying on overgeneralisations about the audience.
Second, the particular generalisations found in these textbooks could undermine more than our own teaching — they could undermine law students’ abilities to bring their individual perspectives into the legal discourse community.
Many popular first-year legal writing textbooks speak quite directly about the personal characteristics of members of the law-trained audience.
The first characteristic, lawyers’ extraordinarily cramped schedules and related impatience, is probably the most frequently mentioned characteristic of lawyers in the first-year textbooks. Lawyers’ intellectual impatience is invoked as a reason why legal writing must be concise.
In short, one of the first and clearest messages to emerge from legal writing textbooks about lawyers is that they are ‘extraordinarily busy’ professionals, seemingly more busy even than the average professional in the modern world; and that because of their busy schedules they are unusually impatient readers.
A second shared characteristic that some popular legal writing textbooks ascribe to legal readers is aggressive scepticism. Neumann, for instance, blatantly describes the legal reader as ‘aggressively’ critical, pointing out that an attorney may attempt to distort language in an opponent’s writing or that a judge may purposefully search for misstatements. Specifically, ‘the reader is aggressively sceptical and — with predatory instincts — will search for any gap or weakness in your analysis.’
A third characteristic legal writing textbooks commonly ascribe to lawyers is personal conservatism, in the sense of an unusual concern with matters of form and format. The texts make both direct and indirect claims about lawyers’ purported formalism.
In an apparent effort to inspire students to be more careful about matters of form, many of these textbooks devote substantial space to admonishing new law students about the strictly formalistic outlook of the future readers of their legal writing.
These textbooks’ advice to follow a rather inflexible organisational formula, the so-called ‘IRAC’ paradigm or some variant of it, bolsters the stereotype that lawyers are formalist, even formulaic, in their thinking.
Some passages in these texts seem to go beyond offering the formula as merely an organisational tool, to presenting the IRAC formula (or similar formulas) as a sort of jurisprudence, an embodiment of the process of legal analysis — assuming, for instance, that legal analysis revolves around identifiable rules, and that legal reasoning is a clockwork process of articulating the appropriate rule and then applying it to the material facts that present themselves.
In summary, instruction regarding rigid adherence to the IRAC paradigm in ordering paragraphs and even sentences throughout written legal analysis lends further support to the depiction in these textbooks of lawyers as almost foolishly formalistic in their approach. As Neumann states, ‘the whole idea of law is that things are to be done according to rules’, and in these textbooks even the process of legal reasoning seems to be governed by rule.
One possible response to these textbooks’ reliance on such generalisations and formulas in legal writing education is simply, ‘so what’. Legal writing textbooks do not embody the whole of legal writing education, and the legal writing teachers who use these textbooks surely supplement the reading with classroom discussions about the audience and purpose for each particular writing assignment.
Additionally, one might ask, even if these generalisations about the ‘law-trained reader’ are not accurate, (and even if one does not think that these traits of impatience, aggression, and formalism are always, necessarily, traits of good lawyering), what harm can these generalisations really do?
To the contrary, I think that the tendency in these popular textbooks to overgeneralise about ‘what lawyers are like’ is a serious concern. Legal writing education is important, and legal writing teachers can do better.
Identification of demographic and other information about the nature of the audience is often suggested as a first step in the ‘process’ approach to writing education, an approach that made strong inroads into legal writing pedagogy in the 1980s and 1990s.
Yet another pedagogical reason for relying on these traits is to motivate students to write more clearly and concisely and be more careful about matters of form.
Other, non-pedagogical reasons may also help explain legal writing teachers’ tendency to opine about ‘what lawyers are like’. Despite recent gains, legal writing teachers remain at most schools on a separate and unequal track of the legal academy. Yet, the average legal writing professor has more practice experience than the average doctrinal professor.
Unfortunately, legal writing teachers’ claim to authority regarding ‘what lawyers are like’ is suspect. A fundamental problem is that each of us only has limited experience from which to draw. Our own practice experience, no matter how long and varied it might have been, is necessarily limited to the experience of one human being in a series of specific professional contexts. Transmitting that experience to our students cannot be sufficient to prepare students for the wide variety of experiences they will face in their own professional lives.
Instead of giving legal writers a one-size-fits-all-readers approach to the audience of law-trained readers, legal writing teachers should enable students to navigate the multiple reading roles they are likely to encounter in various professional contexts after law school. In the effort to help students learn to navigate those roles and contexts, legal writing teachers can and should share their own professional experiences. But to suggest that what students need to keep in mind when imagining those roles and contexts is a set of shared traits like impatience, aggression, and formalism, seems unlikely to be of much help.
And students should question the teaching that lawyers are impatient, aggressive hyper-formalists. These traits themselves are not necessary, or even good, aspects of being a lawyer, at least not in all contexts. A particular lawyer’s impatience while reading a particular memo thus should not be attributed to the fact that lawyers are extraordinarily impatient people.
Likewise, with aggressive criticism; of course legal analysis demands that we think critically about the basis for a legal argument, breaking it down into its component parts, looking for holes in it. And of course some contexts demand that some lawyers behave aggressively, zealously advocating for their client’s rights and desires. At the same time, we can easily imagine other situations and contexts in which a lawyer’s ability to find common ground with adversaries or among competing interests is more important, such as when litigation is first threatened against a client. Thus, a particular reader’s aggressive criticism while reading a particular legal document is not wholly attributable to the fact that the reader went to law school.
In short, legal writing education would be more effective if, instead of teaching students to imagine a monolithic audience with shared traits such as impatience, aggression, and formalism, it engaged students in more complicated, careful thought about the audience for legal writing. Legal writing education should acknowledge the multiple perspectives and motivations that different lawyers bring to the varied reading roles and contexts they face in the profession.
Because legal writing education focuses so explicitly on helping students develop the skills to explore and create legal discourse — that is, the vocabulary, evidence, and arguments that can succeed in the law that other lawyers will recognise as ‘legal’ — our teaching runs a particular risk of devolving into indoctrination in the current conventions of legal discourse.
If legal writing textbooks and legal writing teachers stopped inviting students to imagine the audience for their writing as extraordinarily impatient, aggressive critics, red pens and format guides in hand, what instead should they say about law-trained readers?
We should stop offering half-truths and generalisations about the ‘law-trained reader’, and instead acknowledge the more difficult reality, ‘the “situated legal writer” who must operate with a recognition of institutional contexts and practices that make law a highly complex professional discourse community’.