Smith, M R --- "Alternative Substantive Approaches to Advanced Legal Writing Courses" [2005] LegEdDig 28; (2005) 13(4) Legal Education Digest 17

Alternative Substantive Approaches to Advanced Legal Writing Courses

M R Smith

[2005] LegEdDig 28; (2005) 13(4) Legal Education Digest 17

54 J Legal Educ 1, 2004, pp 119–135

Recent surveys indicate that more and more law schools are beginning to offer legal writing courses beyond those required in the first year. In 2002, 87 percent of the schools responding to a survey of legal writing programs offered upper-level legal writing electives. In the last few years, several textbooks designed to be used in upper-level courses have appeared, and several teachers have written comprehensive articles on advanced legal writing.

This article attempts to summarise and categorise the various approaches to advanced legal writing courses. The intent is to provide a classification scheme — a taxonomy, if you will. A careful examination of the available scholarship and syllabi, along with a review of recent surveys of legal writing programs, reveals that there are four basic substantive approaches to advanced legal writing instruction.

Under the horizontal advancement approach, advanced legal writing is seen as an opportunity to introduce students to new ‘genres’ of legal writing, genres that are different from the types of documents introduced in a first-year course, such as ‘case notes, ... short articles, judicial opinions, ... statutes, pleadings, contracts, opinion letters, and a host of other products’.

Perhaps the best way to understand the horizontal approach is to examine more carefully the different genres of legal writing. There are three basic genres, each with sub-genres. The genres differ in their purpose, their audience, their paradigmatic structure, and the skills required for their effective production. After analysing the genres and their sub-genres, we will see how the horizontal approach to advanced legal writing involves a progression from genre to genre.

Application analysis writing is writing that communicates the analysis of a specific legal problem in terms of applicable legal authority. The writer explains how existing legal authorities apply to a specific fact situation. Many of the most common forms of legal writing can be classified as application analysis writing. Court briefs — both trial briefs and appellate briefs — also fall within this genre of legal writing. Application analysis writing also includes the judicial opinion. As with memos and briefs, the writer shows how existing legal authorities compel a certain result under the facts of the case. Although they are not as formal, two other types of legal documents can also be classified as application analysis writing. The first is the client advice letter: typically the writer explains how the law applies to the client’s factual situation so that the client can conduct his affairs accordingly. The second is the typical law school exam answer.

Legal drafting, as one textbook explains, ‘reduces to writing clients’ desires regarding legally significant transactions or events, for example, wills, contracts, pleadings, and statutes.’ It is unlike application analysis writing — and unlike the third genre we will discuss, critical analysis writing — because it does not involve the communication of legal analysis. The primary function of legal drafting is to produce a document that both reflects and yields a client’s desired results in connection with some event that is meaningful under the law.

Legal drafting is generally broken down into three sub-categories. The first is transactional drafting — the writing of documents that memorialise and effectuate a client’s intentions in connection with business and financial events and transactions. The second sub-category is litigation drafting — the drafting of pleadings and other procedural documents associated with lawsuits and administrative proceedings. Finally, the third sub-category is legislative drafting — the writing of constitutional provisions, statutes, ordinances, regulations, and ‘anything else of a command nature that emanates from an agency of government’. The key to legal drafting is precision in word choice so that the resulting document both reflects and yields the results the client wants, even under adverse scrutiny.

Critical analysis writing — also called scholarly writing — communicates the critical evaluation of a specific aspect or area of the law in terms of relevant legal principles, policy considerations and/or jurisprudential concepts. Unlike application analysis writing, however, critical analysis writing is not undertaken in the context of a specific factual scenario. The analysis is conducted in the abstract. As a consequence, there is no application step of the type inherent in application analysis writing.

Whereas most first-year legal writing courses introduce students to legal memoranda and court briefs, upper-lever electives taking the horizontal advancement approach introduce students to other types of legal writing. Horizontal advancement can best be understood through an analogy. While opinion writing is paradigmatically similar to memo and brief writing, it differs from those types of writing in many other ways. So a course on judicial opinion writing would progress horizontally by introducing students to a new sub-genre within the more general genre of application analysis writing.

Under the vertical advancement approach, on the other hand, an upper-level legal writing course presents more sophisticated aspects of a genre to which the students have already been exposed. As explained earlier, most first-year legal writing courses cover two specific kinds of writing: objective writing, typically taught in the context of an office memorandum, and persuasive writing, typically taught in the context of a court brief. The most popular courses build on the first year’s introductory brief-writing instruction by covering more sophisticated aspects of appellate procedure, appellate brief writing, and appellate oral argument. The other sub-category of the vertical advancement approach comprises upper-level courses on persuasive writing theory and strategies.

The popularity of the horizontal advancement approach to advanced legal writing instruction serves as a testament to its many advantages. First and most important, it gives teachers and students the opportunity to work with various types of legal writing that were not covered in the first year and that may be important to the students’ future practice as lawyers. Another big advantage to horizontal advancement is that a number of textbooks and sample syllabi are available for such a course. The abundance of such materials no doubt reduces the substantive and administrative hassles associated with designing a new upper-level writing course. Despite these advantages, there is one major disadvantage for teachers considering the horizontal advancement approach. Because these courses introduce students to new genres of legal writing rather than build on prior instruction, they are basic and fundamental — and introductory.

Much has been written in recent years on the advantages of integrating legal writing instruction with instruction on other lawyering skills and/or instruction on a specific doctrinal subject. It is said that integrating legal writing with other topics allows students to see how legal writing fits into the broader context of effective lawyering and allows them to appreciate the interrelationship between practical lawyering skills and the skills associated with mastering the substance of a particular doctrinal area. A third advantage is that the integrative approach allows teachers to introduce students to number of different genres of legal writing.

But the integrative approach also has its disadvantages. First, teachers who integrate writing instruction with outer topics must spend significant class time on subjects other than writing. Second, because the pedagogical goals of an integrated course are broader than those of a pure legal writing course, the teacher of an integrated course may have more difficulty designing problems and exercises. Finally, no textbooks are available at present for the integrative approach. While there are some helpful articles, many teachers may feel the need for a truly comprehensive textbook.

Although more and more law schools are offering upper-level legal writing electives, what constitutes advanced legal writing can differ dramatically from school to school, and even from teacher to teacher. With an understanding of the various approaches to advanced legal writing and their attendant advantages and disadvantages, and a knowledge of the materials currently available, legal writing professionals will be able to learn from and build on the efforts of their predecessors and will have a solid foundation for designing new advanced courses.