Enquist, A --- "Unlocking the secrets of highly successful legal writing students" [2010] LegEdDig 24; (2010) 18(2) Legal Education Digest 27

• Unlocking the secrets of highly successful legal writing students

---

Unlocking the secrets of highly successful legal writing students

A Enquist

82(2) St John’s Law Rev, 2008, pp609-675

Most students who are admitted to law schools in the United States ‘succeed’ in the sense that they pass their classes and go on to take and pass the bar. But success in law school is a relative thing. While no one would disagree that a student who passes a class with a ‘C’ had at least limited success in that class, virtually all would also agree that a student who passes with a ‘B’ was more successful and that the ‘A’ student was still more successful.

The interesting question, of course, is what did the A student do to be highly successful that the B and C students did not do.

I set out to answer that question in a study of six law students, two of whom were predicted to be marginally successful C students, two of whom were predicted to be moderately successful B students, and two of whom were predicted to be highly successful A students.

The goal of the study was to analyse the working methods and composing processes of six law students as they each wrote two briefs, one at the pre-trial level and one at the appellate level, for a required second-year legal writing course. The students were selected for the study based on the recommendation of their first-year Legal Writing I (‘LWI’) professors.

The six students who were ultimately selected for the study – one male and one female at each of the predicted levels agreed to participate in the following activities as part of the study: (1) meet with me, the study investigator, once a week during the semester for approximately one half hour for interviews related to the writing tasks for the course; (2) send to me by email all drafts of the two writing projects for the course, as the drafts were done; and (3) keep a daily record of all their activities related to the writing projects, including legal research, reading assignments, class attendance, and writing conferences, and submit copies of those records to me each week.

Marie’s score on the Law School Admission Test (‘LSAT’) was 152, and at the beginning of her second year of law school, when this study began, her overall GPA was 2.3. Although her LWI grade was a B, her LWI professor had identified her as someone who was only ‘marginally successful’ in legal writing.

‘Andy’, the second student selected for the study who was predicted to be only marginally successful, majored in psychology at a small private university and earned a 3.11 GPA.

Andy’s LSAT score was 149, which was unusually low, and at the beginning of his second year of law school, his overall GPA was 2.3. His LWI grade was a B minus.

Teresa’s undergraduate GPA was 3.2. She had done ‘a good bit of writing’, primarily essays and eight- to ten page research papers in her junior and senior years. Between her undergraduate years and law school, she had worked as a paralegal in a large law firm. Teresa’s LSAT score was 153, and after one year of law school, her GPA was a 2.4.

‘Eric’ was the second student in the study who was predicted to be moderately successful. As an undergraduate at a medium-size public university, he had majored in humanities and graduated with a 3.5 GPA. He remembered writing essays for several classes and had taken two courses devoted to writing. Before coming to law school, he had worked as a general office clerk at a law firm.

Eric entered law school with a 152 LSAT, and after his first year, his GPA was 3.0.

As an undergraduate at a large public university, ‘Art’ had majored in political science and graduated with a 3.4 GPA.

Art entered law school with a 154 LSAT. After his first year, he had a 3.6 GPA and an A in the first-year legal writing course.

Arriving at law school with a 154 LSAT score, Sonya immediately proved herself to be one of the strongest students in the LWI class. She earned an A in that course, attributing her success to a combination of factors: a good grasp of the research tools, an ability to identify the issues, good organisational structure, and strength in writing. Her success in legal writing was matched by success in her other first-year courses; she ended her first year with an amazing 3.967 GPA.

Based on the initial interviews with the six students, several possible predictors of success in the LWII course emerged: LSAT scores; undergraduate GPAs; grades in LWI; first-year law school GPAs; the students’ writing experience; and ‘intangibles’, such as Marie’s level of effort and Andy’s negative experience with his LWI professor and lack of confidence.

The grades for the six students on the two assignments for the second-year legal writing course suggest at least two things: (1) the initial predictions about the relative success that these six students would enjoy in the LWII course turned out to be fairly accurate, at least for the pre-trial brief, and (2) something dramatically changed for Andy and Teresa, the two students who improved a full letter grade from the pre-trial brief to the appellate brief. In addition, there was a significant drop – from a C plus to a C minus – in Marie’s grades on the briefs. Although that drop represents only two-thirds of a letter grade, the C minus turned out to be the lowest grade on the appellate brief and a red flag that her work was only barely acceptable.

A first and important consideration is simply how hard the six students worked. As part of the study, all six students agreed to keep time sheets on which they logged all the hours they spent on the legal writing course.

Interestingly, through the first part of the course when the pre-trial brief was turned in, five of the six students remarked that they were working at peak capacity – giving it their all.

While the two most successful students in terms of grades logged between 80 and almost 87 hours for the course up to this point to earn the A and A minus on that first writing assignment, Andy logged slightly more time (87 hours, 19 minutes) than either of them and earned the lowest grade of the six (C minus) and, but for the one student whose grade was lowered for a late penalty, the lowest grade in the class.

Once again, there was a significant disparity in the amount of time the six students spent – from 87 hours and 10 minutes to a surprisingly high 210 hours and 17 minutes. Working more hours did have an impact on the end product – Marie and Andy spent the least amount of time and earned the two lowest grades – but the amount of time spent was quite obviously not the only factor affecting the success of the writing projects.

Although working more hours was certainly one key to success, an equally important factor was how the most successful (and least successful) students spent that time.

The time sheets the students used had four columns: date, time started, time ended, and activity. Having the students describe how they spent the logged time ensured that the data collection techniques did not somehow suggest to the students how they should be spending their time.

The two most successful students, Art and Sonya, spent significantly more of their time taking notes outside of class and reviewing both class and out-of-class notes than did the other four students. Both students mentioned several times in their individual weekly interviews that they took extensive notes not only in class but also when reading rules and cases and thinking through the analysis. Both had the habit of putting things in their own words so that they ‘owned’ them.

Like Andy, Marie had poor note-taking and note-reviewing habits. In fact, she recorded no time spent taking notes outside of class or reviewing her notes. In her weekly interviews, Marie commented that she takes good notes in class, but she seldom refers back to them.

The stark contrast between the note-taking and note-reviewing habits of the most successful and least successful students suggests that this skill or practice may be one of the most reliable indicators of success in law school, or at least in legal writing classes.

Yet another point that jumps off the time sheet was the proportion of their overall work time that Sonya and Art devoted to actually writing the two briefs, and in particular to revising, editing, and proofreading them. Coincidentally, both reported almost exactly 65 hours devoted to revising, editing, and proofreading and 42 hours devoted to first drafts for a total of approximately hours writing each.

A distant sixth place was Marie who spent 11.5 hours drafting and 15.5 hours revising, editing, and proofreading for a 27 hour total devoted to writing. Of the total amount of time Marie spent on the course, only about a third of it was spent writing.

Also noteworthy was the significant proportion of their time that both Teresa and Eric spent researching and reading cases. Teresa spent approximately 53.5 hours and Eric spent 63.25 hours. Note too that Art and Sonya seemed to have found essentially the same material in 34 and 25.5 hours respectively.

All four students who were ultimately the most successful in the course – Sonya, Art, Teresa, and Eric – underline, highlight, and annotate the cases as they read.

While her five classmates spent 1:50, 3:05, 3:44, 4:00, and 5:27 hours respectively on this activity, Marie recorded a meagre 20 minutes reading the textbook and handouts. As a result, Marie was often missing basic information, such as where issue statements appear in a brief or how to write an argumentative heading, that she would have acquired had she read the textbook or handouts.

Another area in which Marie devoted a significant proportion of her time was for her work on her oral argument. Marie did earn her highest grades on oral argument-B plus and B – which accounted for 30 per cent of her grade and pulled her overall grade for the course up to a C plus. Furthermore, the work on oral argument undoubtedly fed into the briefs.

Marie procrastinated at both researching and writing. Marie employed what is sometimes called ‘the free-rider’ approach to law school. Rather than do the initial research or writing herself, she developed the habit of hanging back and waiting to see what her classmates had found to be the key rules, cases, and arguments.

Both Art and Sonya had developed techniques for reading cases efficiently and effectively. Art used a system that involved reading cases three times: a first read to give him a gist of what was going on; a second read for making notes, including notes on what was unknown or how pieces related or connected; and a third read for exploring how both sides might use the case.

For the most part, the six students seemed to keep their research fairly well organised. Andy, Teresa, Eric, and Sonya had all developed notebooks with hard copies of their cases.

The organisation of their briefs was a key factor in the overall success of each of the students in the study. To keep themselves organised as they wrote, different students used different strategies with varying degrees of success.

Happily, in her critiques of both briefs, Professor Lee noted Teresa’s good organisation. But several of the other students also received positive critiques on organisation and these students spent far less time and effort on their outlines.

Two of the three students who were disappointed by their grades on the pre-trial brief – Teresa and Andy – immediately began working closely with Professor Lee to ensure that they got back on track for the appellate brief.

In contrast, although Marie did not avail herself of the opportunities to conference with her professor, she did seem to realise as the course progressed that she needed to pay more attention to the information her professor was providing.

Sonya, the 3.967 student at the top of her class, and Teresa, who made a full letter grade improvement from the pre-trial motion brief to the appellate brief, were the two students who used the professor as a resource most extensively.

Students also worked in pairs to ‘peer edit’ each other’s statements of facts and participated in a ‘case swap’ in which they shared cases with a partner. Students were also encouraged to practice their oral arguments with each other.

All of the students, except possibly Art, took advantage of the opportunity to practice their oral argument skills with classmates outside of class. These five considered the experience helpful, both in calming their public speaking fears and in practicing sub-skills such as responding to questions and managing the allotted time.

Both Art and Sonya seemed to resent that they did ‘the heavy lifting’ during the in-class small group exercises, and that weaker students were benefiting from their hard work.

Putting aside the questions of what collaboration was permissible and whether mandatory in-class collaboration unfairly benefits weaker students, one is left to speculate as to why out-of-class collaboration was perceived as so valuable to these students, while in-class collaboration received such mixed reviews.

In short, during the time when these six students were researching and writing their pre-trial and appellate briefs, life ‘happened’, and how they dealt with the expected and unexpected pressures, time demands, and psychic dissonance made a difference in their degree of success.

Unexpected distractions, such as illness, were more problematic. Fortunately, the two students who got sick at various points in the semester – Teresa and Art – were both on track or slightly ahead when illness struck, so they did not fall too far behind during the time when they were sick.

One other form of distraction was any perceived unfairness that diverted a student’s attention and siphoned off researching and writing time, energy, and commitment. For example, the LWII problem included evidence issues, and not all of the students in the study had taken Evidence yet. Those who had not taken it felt, probably correctly, that they were at a disadvantage. Some students dwelled on perceived disadvantages and allowed them to undermine their motivation; others did not.

Finally, one must add that receiving a lower-than-expected grade was a major distraction for three of the students. Arguably, Marie never fully recovered from her disappointment over her grade on the pre-trial brief. Lacking either the resilience or the determination of Andy and Teresa, Marie’s earlier low grade was the start of her slide down to the bottom of the class.

Marie’s tendency to blame the professor rather than herself seems to have contributed to her continuing lack of success in the course. Rather than tackling the problem, Marie seemed to disengage from the course, gradually investing less and less in it.

Teresa, by contrast, never seemed to look for a scapegoat on which to blame her lack of success on the pretrial brief. Instead, she shifted into ‘problem-solving mode’, tackling each weakness and addressing each problem. As a result, she improved a full letter grade on the appellate brief, ending the course with a B plus.

While we may have suspected that LSAT scores and undergraduate GPAs would be good predictors of academic success in a second-year legal writing course, those scores and undergraduate GPAs had little, if any, predictive value for the six students in the study.

We already knew that working harder and working smarter were the keys to success in law school. What we may not have realised before is just how hard some students work in their legal writing classes and what are the specific components of ‘working smarter’.

Successful students were putting in well more than twice the hours of the least successful students and about 25 per cent more time than some moderately successful students.

Perhaps most intriguing, however, were the components of ‘working smarter’.

First, while no one would be surprised that the most successful students took extensive notes outside of class, particularly in the form of phrasing rules and arguments in their own words, annotating their cases, and writing case summaries or briefs, what was a bit surprising was how important it was that the students continue to review their notes and check their work against them.

The second secret to working smarter seems to be to spend a significant proportion of one’s time actually writing. The most successful students spent well more than half of their total time for the course writing. And of that writing time, the most successful students spent well more than half of it revising, editing, and proofreading.

Third, there were noticeable differences in the most successful students and least successful students’ research and reading skills. The two top students were models of efficiency when it came to research.

The most successful students also had effective reading habits that included a number of strategies for making the material their own.

Fourth, in addition to being efficient researchers, the two most successful students were effective managers of their time in several other ways.

Fifth, the more successful students realised that, with tasks the size of the pre-trial and appellate brief, they had to develop ways of staying organised. Four of the six created notebooks with hard copies of their cases, and three of the four used a system of pulling out a pile of hard copies of related cases when they were working on a particular point. The least successful student of the six was the one who was most likely to rely solely on the downloaded versions of cases in a folder on her computer.

Sixth, the more successful students saw the professor as a key resource for their learning and were creative in the many ways they sought access to her, asking questions before, during, and after class, in emails, embedded in drafts, and during office conferences.

Seventh, while the practice of talking over the issues and arguments with others varied among the successful students, the two most successful students were far less likely than the other four students to see in-class group exercises as valuable, preferring instead the out-of-class discussions with other students.

Not the least bit surprising were the key pitfalls to avoid: procrastination, getting derailed by distractions, and scapegoating.