More robust legal writing
By Cristina D. Lockwood
“Writing a winning legal argument can often be the most important single element in a case.”1
Most law schools recognize that law students can benefit from additional legal writing during law school. Twenty years ago, a typical law school offered a first-year legal writing course in which the first semester was spent learning how to write a legal memorandum and the second semester was spent drafting an appellate brief. Often this course was graded on a pass/fail basis, and some were taught by third-year law students. Legal writing courses have changed substantially since that time.
The impetus for more robust legal writing courses arose, in part, from what is commonly referred to as “The MacCrate Report.” In 1992, Robert MacCrate chaired an American Bar Association task force that issued a report titled, “The Report of the Task Force on Law Schools and the Profession: Narrowing the Gap.” The MacCrate Report emphasized the importance of law schools teaching students skills, such as legal reasoning and analysis, and legal research.2 Legal writing courses now routinely require more graded assignments and more diverse writing assignments. A modern first-year legal writing course may require students to complete pleadings, discovery requests, or transactional documents in addition to legal memorandum and briefs.3
Legal writing course requirements have also changed due to technological advancements. For example, in additional to requiring a formal legal memorandum, many courses require students to draft an email to a fictitious law firm partner answering a research question.4 The idea is for the students to learn to communicate using methods that they will use in practice.
The University of Detroit Mercy School of Law (UDM) has taken the idea of preparing students for the writing that they will encounter in practice even further. UDM has implemented a comprehensive approach to teaching students legal writing and research skills, requiring students to complete numerous writing assignments throughout their three years in law school.
This approach starts with UDM’s first-year legal writing course, Applied Legal Theory and Analysis (ALTA). ALTA takes a contextual approach to learning analysis, writing, and research. Students are required to research realistic problems and communicate their research results in a variety of legal documents. Rather than focus on discrete skills and episodic assignments, the ALTA assignments build on each other and require students to apply doctrine at increasingly sophisticated levels in the context of preparing the documents common to the practice of law. Students draft two legal memoranda and a client letter in the first semester and draft a pleading, a motion and brief, and a transactional document in the second semester. The focus of the course is on teaching the fundamental elements of legal writing, analysis, and research and instilling good writing practices.
UDM continues the students’ legal writing instruction in the second and third year through a variety of programs. Initially, UDM students are required to complete a clinical course. There are a variety of clinical courses offered,5 but each requires some practical writing assignment. For example, students in the Immigration Law Clinic may write briefs to the Board of Immigration Appeals or the U.S. Court of Appeals for the Sixth Circuit. Under the guidance of a clinical professor, the students learn how to properly draft documents needed to advance the client’s case. The students gain practical writing experience while also benefiting those in need.
Another program that ensures significant writing experiences is UDM’s Writing-Across-the-Curriculum Program. In this program, each upper-level required course, such as Professional Responsibility, Evidence, and Constitutional Law, will have a writing assignment that is worth at least 15 percent of a student’s final grade. The writing assignments are designed to allow students to delve more deeply into the subject area, and when returned by the professor serve as a formative assessment of the student’s understanding of the material. The writing assignments involve realistic problems that might arise in the subject area. The students convey their research in a document that practitioners in the subject area might encounter. For example, students in a professional responsibility course are asked to draft an ethics opinion based on a fictitious yet realistic question that might be submitted to a state bar. The program is designed to ensure that students have a diverse writing portfolio upon graduation.
UDM also requires that students take at least one Law Firm Program course. The Law Firm Program courses offer a unique educational experience for UDM students. The courses are taught by experience law practitioners. They are designed to bridge the gap between law school and the practice of law by mimicking the activities a law clerk would be expected to complete in practice. There are no exams or textbooks. Instead, students draft all necessary documents given the problem or problems presented in the course. These writing assignments and activities could include “drafting a letter to a client, preparing a brief or motion in a court proceeding, drafting and negotiating the terms of an acquisition or employment agreement, making oral presentations, and interviewing a client about to be deposed in a litigation matter.”6 As a specific example, the description for the Law Firm Program course on International Commercial Arbitration states:
“This course will provide the student the opportunity to engage in a simulated international commercial arbitration proceeding from its inception to the issuing of an Award. Students will act as associates in a law firm and engage in the types of activities an associate would handle when assigned to assist with an international commercial arbitration. Students will conduct research, draft memos, draft arbitration submissions and Terms of Reference, participate in a mock arbitration and analyze an arbitration award. Students also will draft an arbitration provision for a transactional agreement. The course will introduce students to international arbitration procedure and process, including controlling authority and rules of various international tribunals. Research, drafting exercises and/or oral presentations will be assigned weekly.”7
To round out the students’ writing experience, UDM students are also required to take a seminar. The students research a particular topic of interest within the subject area of the seminar and draft a scholarly paper. During the drafting process, the students present their research results to their classmates and exchange ideas. The paper is generally thirty pages, exclusive of footnotes, and “reflects the student’s independent research as it has been enlightened and sharpened by class discussion.”8
Additionally, there are several upper-level elective courses that students can take to improve their research, analysis, and writing skills, such as Advanced Legal Research and Advanced Appellate Advocacy.
UDM’s comprehensive approach to teaching legal writing helps UDM students prepare for the practice of law. Students learn the fundamentals of legal research, analysis, and writing in the ALTA program in a collaborative environment where there is extensive interaction between the ALTA professor and student as the student begins to understand the rhetorical context for their writing. In the second and third year, students complete the writing-across-the-curriculum assignments with less professor involvement. They apply what they learned in ALTA and communicate the results of their research on realistic problems using practice-based documents. Students then transition to independently drafting documents and completing tasks that would generally be required of a law clerk in a law firm when the student participates in a law firm program course. Students also gain hands-on experience by working with clients in need during a clinical course. The seminar requirement rounds out the students’ writing experiences by requiring them to draft an extensive scholarly paper. During this writing project, students develop an understanding of the amount of work required to complete such a writing project. These varied writing assignments allow students to hone their legal research, writing and analysis. UDM’s comprehensive approach to teaching these skills reflects its position that these skills are of fundamental importance to the practice of law and deserve significant attention during law school.
————————
1Lawrence D. Rosenberg, Writing to Win: The Art and Science of Compelling Written Advocacy, 1 (2012)(available at https://www.americanbar.org/content/dam/aba/administrative/litigation/materials/sac_2012/34-2_writing_to_win_art_and_science_compelling_written_advocacy.authcheckdam.pdf).
2Am. Bar Ass’n, Section on Legal Edu. And Admission to the Bar, Legal Education and Professional Development-An Educational Continuum: Report of the Task Force on Law Schools and the Profession: Narrowing the Gap (1992) (available at http://www.americanbar.org/content/dam/aba/publications/misc/legal_education/2013_legal_education_and_professional_development_maccrate_report%29.authcheckdam.pdf).
3The Association of Legal Writing Directors and The Legal Writing Institute Report of the Annual Legal Writing Survey 2013, vii (available at http://www.lwionline.org/surveys.html).
4Id.
5UDM Law- Clinics, www.law.udmercy.edu/index.php/academics1/clinics.
6UDM Law- Law Firm Program, www.law.udmercy.edu/index.php/academics1/law-firm-program.
7UDM Law- Law Firm Program: International Commercial Arbitration (7190), www.law.udmercy.edu/index.php/academics1/academics-1/item/international-commercial-arbitration-law-firm-program-7190.
8UDM Law- Student Handbook Fall 2013, www.law.udmercy.edu/udm/images/academics/StudentHandbook2013.pdf.
————————
Cristina Lockwood received her undergraduate degree from the University of Michigan and her law degree from Wayne State University Law School where she served on the editorial board of the Wayne Law Review. After graduation, she was an associate for a New York firm specializing in corporate transactions. Upon returning to Michigan, she worked for a real estate transaction firm and joined the UDM faculty as an adjunct. In 1995, she joined the faculty full time to teach in the Applied Legal Theory and Analysis program. In addition, she teaches Professional Responsibility, currently serves on the Curriculum committee, and is the chair of the Writing Program.
