Salisbury, A --- "Skills without stigma: using the JURIST method to teach legal research and writing" [2010] LegEdDig 27; (2010) 18(2) Legal Education Digest 38

• Skills without stigma: using the JURIST method to teach legal research and writing

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Skills without stigma: using the JURIST method to teach legal research and writing

A Salisbury

59(2) Journal of Legal Education, 2009, pp173-191

Common to every practice area of the law is the need for clear, concise writing to convey the relevant legal principles and precedents. However, practitioners constantly report that their new associates are unprepared for the work required of them upon graduating from law school’, a dilemma consistent with data indicating that law schools are not improving students’ legal information literacy skills.

Law schools put students through legal writing programs, and writing plays an important role in helping or hindering a lawyer’s career advancement, yet students graduate grossly underequipped to meet the demands of this crucial aspect of their chosen professions.

Employers of recent law school graduates have had to take on the burden of providing new lawyers with the tools to perform their jobs quickly and properly. Many larger firms have either hired full-time writing experts to develop intensive in-house tutorials or have chosen to pay thousands of dollars in consulting fees for outside experts to come in and hold legal writing seminars for associates. Small and even mid-size firms generally do not have the resources to develop in-house programs or to pay the sizeable consulting fees, and what about those graduates who accept positions with public defenders’ offices, non-profits, or other public interest organisations? Consequently, some new tactic must be employed to arm students with the ability to research and write effectively so that upon graduation, they are prepared to develop arguments and support them to advocate for their positions.

This article explores the reasons why the current legal writing curriculum is not meeting the needs of the modern law student, ultimately proposing that instructors consider and implement various aspects of the legal research and writing model pioneered by JURIST (http://jurist.law.pitt.edu), the online legal news and commentary service founded by Professor Bernard J. Hibbitts and hosted by the University of Pittsburgh School of Law.

JURIST is made up of several different sections, one of which is the student written Paper Chase service. Paper Chase posts are real-time legal news stories written in a two-paragraph loose inverted pyramid style, meaning that the most important information is put first and is followed by background information to put the story in context. Like legal documents, Paper Chase

posts are highly formatted pieces of writing, but students are encouraged to express their own style and voice within that structure. An experienced editor can tell which student has written a post without checking the byline. Students like this approach, and find that they are able to be creative while taking ownership of their original research by finding new and interesting sources for posts. Student writers, called ‘anchors’, must quickly locate primary source materials – the judicial decisions, legislation, testimony, reports and releases behind the legal news – and present them objectively for readers’ direct scrutiny. JURIST stockpiles fact – the documentary record of the law in progress.

Every JURIST Paper Chase post can be understood as a mini-casebook, a set of research readings with a short ‘theme’ (disguised as news) introducing and focusing it on specific circumstances.

JURIST began inviting students to write for Paper Chase during the 2004 – 2005 school year, but JURIST itself has existed in various forms since 1996.

Individual Paper Chase posts are researched, written, edited, and published within two hour shifts, but this quick production schedule does not diminish their quality. Like all content on JURIST, Paper Chase posts must be unique, well-researched, and thoroughly documented. An assignment often takes the form of a brief description (one to two sentences) of some legally-significant event, or it might be a minutes-old court opinion. In this real-time environment, JURIST student staffers learn critical skills in (a) legal comprehension and analysis, (b) legal research, and (c) legal writing.

Development of legal comprehension skills is perhaps the most basic but least obvious aspect of anchors’ work. Anchors must pick out the controlling legal points, research the story’s background, and then understand it well enough to be able to explain it coherently and neutrally to others. Selecting the most important facts and background developments can be troubling, even for practising associates, but following the journalistic process teaches anchors to absorb and communicate what readers want to know, and to do so within no more than an hour so as to maintain JURIST’s production pace. The ability to work under pressure is helpful in essentially any profession, but for lawyers ‘[i]n the professional practice setting, effective time management is not a luxury but a necessity’.

For anchors as well as lawyers, it is only the final product which matters, and it should be free from embellishment, which is often a difficult principle to accept. Paper Chase anchors and practising attorneys must learn to suppress the urge to ‘see writing projects as a chance to show how much research they have done’. Instead, they want to get the relevant information and the links to the documents they need.

Paper Chase posts are value-added products made by providing readers with research results, which are really the hallmark of the service. The most fundamental and groundbreaking aspect of staffers’ research is that it is done entirely online.

An anchor begins researching his or her story by working backwards from what JURIST has already published on the topic, which involves searching JURIST’s archive of over 28,000 past Paper Chase posts. This exercise echoes the experience of an attorney using his or her firm’s past work product as a guide for developing new memos or briefs, while also providing a sense of security and guidance for new staffers. Everything on JURIST is tied to something else, in a mind-mapped or web-type format, so anchors also search JURIST’s commentary services for related content.

In addition to the JURIST archival content, secondary sources might include issue backgrounders, profiles of individuals important to the story, State Department country reports, etc.

Anchors are not at all bound to the angles taken by other news services, and should derive their facts from primary sources in order to interpret the story and write their own post with a legal emphasis appropriate to Paper Chase. Thus, once they are sufficiently versed in the fundamentals and context, students go on to search for the primary sources which drive the story.

Certain enterprising staffers go beyond that level of research: they actively solicit materials from sources by getting attorneys to send them briefs, asking government representatives to send them studies and comments, etc. This kind of advanced research experience will be a real money-saver once students graduate and begin to practice law, because ‘common sense suggests that law firms will increasingly integrate [free information sources] into existing research conventions’.

From the students’ perspective, the third key benefit of working on PaperChase is the writing itself. Paper Chase’s written content is independent coverage of substantive legal developments written in plain language with a focus on making primary sources easily accessible to the public. We as a society are increasingly pressed for time to produce and consume information, meaning that we need to put a premium on teaching students how to write quickly, correctly, and concisely.

Explaining the events and facts to someone else can clarify information in a way writing notes on paper cannot. The remainder of the first paragraph fleshes out the details alluded to in the first sentence by explaining legislation, giving procedural posture, describing the court’s reasoning, or elaborating on evidence cited by a particular advocacy group. Since issues generally have at least two points of view, they are instructed to provide both the main argument and its rebuttal.

To finish the post, anchors must draft a second paragraph tracing the ‘story arc’ behind the most recent legal development. Returning to the archived JURIST content they first consulted to create their search terms, they analyse these materials to build on the past work of other staffers by streamlining and re-faceting it, adding new research and tying facts to other stories or sections of JURIST as necessary to help support their narrative.

Early on, shifts can be tense for both editors and writers, as many students have come to ‘feel entitled to good grades’ and are unaccustomed to receiving any kind of real criticism requiring them to conform their work to a paradigm. This encounter must be in person to be effective, but once a staffer understands why things must be done in a certain way, he or she will almost always accept the standard and begin to conform to it.

Studies show that today’s students work best when given clearly defined standards and that they are accustomed to frequent assistance and supervision. Accordingly, to promote mastery of research and writing methods, professors must show law students how to ‘self structure’ their work. While they are developing that skill, students’ need for external support can be met through collaborative learning, providing a welcome respite from the competitive atmosphere of legal education. Analysing and explaining real issues rather than evaluating hypothetical scenarios makes for active learning, so that students synthesise information more quickly and retain lessons for future use.

The most important factor that makes Paper Chase work as a legal research and writing exercise is a defined set of standards for good performance. Objective criteria for posts are found in JURIST’s staff manual, perhaps best explained as ‘The Bluebook meets The Associated Press Stylebook’. The manual covers everything: the editorial process, writing tips, style, and ethics, supplemented by brief backgrounders on major national and international legal institutions and procedures that anchors are likely to deal with on their shifts. JURIST staffers are always reminded that they control their own level of success.

Accordingly, Paper Chase anchors get specific guidance and feedback on their work and they get to ask questions while they are writing. The process relies on instant messaging so that peer editors can stop problems before they start by monitoring students’ work within our publishing software in real time. Prior to publication, the editor sends the anchor a bulleted list of what was changed – and more importantly why it was changed – so that the anchor can use this concrete information to improve with each post instead of wondering what happened to his or her work during the editing process. It is then the student’s responsibility to follow up by checking the published post, which he or she then submits to outside aggregation services.

Besides providing readers with news on the JURIST website, a Paper Chase post serves as a valuable demonstration of the general research, writing, editing, publication, and distribution process which is common to practitioners and academics. Directing students to such an easily-embraced model as a Paper Chase post could keep students on a direct path through their writing assignments, improving focus and clarity.

Unlike every other part of the law school experience, JURIST does not pit students against each other, and despite being almost entirely virtual, it instead fosters a sense among staffers that they belong to a community of people with shared goals and values. Rather than concerning themselves with cutting corners to get the best grade, staffers can concentrate on mastering skills and comprehension, exactly as they are supposed to be doing in their ‘substantive’ courses.

All of JURIST’s staffers recognise the value of this outside experience, and capitalise on it to improve not only the site, but themselves as well. When students are invested in the actual subject matter of their research, the skills they learn are more likely to sink in and have lasting impact.

JURIST’s professional staff members do not teach students how to write briefs or follow The Bluebook, but – like legal research and writing professors – they teach law students how to conduct research and convey a legal narrative in a specific format. It is as if an encouraging legal writing professor were always looking over one’s shoulders.

In the process of soliciting primary source material or getting reaction to stories, JURIST staffers get a sense that they are more than just observers or conveyors, but rather are active participants in real-world legal process. Several students have remained actively involved in site operations after graduation, while others continue to stay in touch and take an ongoing interest in JURIST by serving on the board of directors, writing commentary for the site, or providing pro bono legal services.

Clinical legal education programs have increased in popularity and number over the past few decades, as law schools have taken notice that they ‘add[ value to the entire educational process by supplying a bridge between theoretical concepts acquired in traditional classes and the application of such knowledge in practice settings’.

In a clinic, students are supervised in an environment which teaches them practice skills while they are performing a public service. JURIST is not exactly a clinic, as there is no litigation or formal legal representation going on, but essentially the same bridging is happening. Students serve the public by presenting critical information for academics, practitioners, and laypeople, and in the process they learn about the law as it evolves.

During the JURIST application and audition process, students complete editing and writing exercises so that senior staffers can assess their strengths and weaknesses. By the time selected students begin producing content for the site, their problem areas have already been identified and they know where they have to focus in order to improve. Similarly, professors should consider giving their students a skills assessment prior to beginning any legal writing instruction or assigning any projects. Some students likely do not realise that they have deficiencies in such fundamental skills as grammar, syntax, or spelling, and pointing out these issues at the beginning

of the semester saves the professor the frustration of noting every instance of a misused ‘it’s’ or ‘its’ when it comes time to review students’ memos and briefs later on.

Perhaps the easiest lesson to take away from the JURIST model for teaching research and writing skills would be that today’s students need concrete guidelines in order to succeed. Paper Chase anchors receive a checklist that they must review prior to submitting their posts for editing, so that they can be sure they have met the objective criteria, allowing the editors to focus on helping them with the subtler stylistic points. In the classroom environment, a professor could help the students and make his or her own work easier by handing out a grading rubric when assigning papers. This method both provides a comforting structure for the student and sends the message that grades are not based on the professor’s subjective judgement, but rather are grounded in a quantitative assessment.

Professors or even law school orientation speakers might try teaching students to prepare for classes by briefing cases in the way that Paper Chase anchors report on new rulings. Paper Chase posts could also be used to help students to organise longer assignments by ‘us[ing] this heuristic to frame their issues, begin their research, and synthesise their materials’. In this way, students would be able to sort out their research and find their argument by focusing on creating a sort of miniature model for a project without getting overwhelmed by the daunting task of structuring a whole memo, possibly for the first time.

Much of the improvement in staffers’ research and writing abilities is due to repetition and time constraints. Strict time constraints will force the students to focus on only the most important elements, and will simulate the pressure of their future careers more closely than a leisurely-paced progression through a semester-long project. The success of JURIST’s approach would also indicate that professors should not make each of those small projects unique, but instead should allow for some repetition in order to promote mastery of skills prior to moving on to other areas.

Feedback is a vital part of an anchor’s experience, and the constant reviews produce the greatest changes in students’ work. There is no doubt that providing ongoing high-quality criticism is time-consuming, but it is ultimately the only way to generate meaningful long-term improvement. One way to provide students with frequent feedback without overwhelming the professor with reams of compositions is to introduce peer editing exercises in the classroom. In the process of editing another person’s work, they learn how to better edit their own writing. Merely seeing that others do things differently can open students’ minds to new possibilities, and can also help students to realise for the first time that they actually have a personal writing style.

Whatever others might teach them, JURIST student staffers ultimately succeed in their efforts to become better researchers and writers because they are motivated to keep learning. They consistently report that they enjoy what they do because they get to see ‘the law in action’, rather than just learning it through hypothetical scenarios or 19th century disputes written in what appears to be some sort of foreign language. Rather than lamenting what is perceived as disinterest and lack of preparation, professors should seek out new ways to reach today’s students. The legal journalism methods developed by JURIST and discussed in this article represent one possible approach to this ongoing search.