Becker, T --- "If I had a hammer: can shepardising, synthesis, and other tools of legal writing help build hope for law students?" [2011] LegEdDig 12; (2011) 19(1) Legal Education Digest 41

• If I had a hammer: can shepardising, synthesis, and other tools of legal writing help build hope for law students?

---

If I had a hammer: can shepardising, synthesis, and other tools of legal writing help build hope for law students?

T Becker

Duquesne Law Review Vol. 48, No. 2, 2010, pp 325-347

Are lawyers mechanics? In 1920, photographer Lewis Hines took a striking photo of a powerhouse mechanic sure-handedly wielding a large wrench to tighten bolts on a steam pump. This picture may bring to mind many things, but I suspect that many legal writing professors in our (past or present) incarnations as practising attorneys would not look at this image and think, ‘My job is a lot like that’. Indeed, many of our students might have chosen to pursue a career in law precisely as a way of escaping family traditions of this type of difficult physical labour. But the comparison between lawyer and mechanic is neither so far-fetched nor demeaning. In fact, I propose that we legal writing professors can better serve our students, and increase our chances of engendering and maintaining hope in our students by more explicitly acknowledging the connections between the tools of legal writing and tools as used in the more down-to-earth context of manual labour.

My guide throughout this discussion will be a decidedly non-legal source: Matthew Crawford’s Shop Class as Soulcraft, as well as other books of a similar vein. As Crawford acknowledges, most of his examples are drawn from mechanical repair and the building trades because that’s where his experience lies, but he believes that the arguments he offers ‘can illuminate other kinds of work as well’.

The connections I’d like students to make between legal tools and physical tools are that the legal tools are not so conceptually distinct from other modes of life with which they presumably are more familiar. These connections, in turn, can provide the students with additional perspective on the inevitable difficulties that will come in trying to learn how to use this new set of tools.

‘Tool’, ‘tools’ and related variants are a common motif in legal education. Legal writing texts and articles often refer to the various ‘tools’ that attorneys must use to adequately represent their clients (and thus that students must learn to use in the academic setting of law school), or rely upon vivid tool-based analogies to drive a point home. Nor is this usage limited to legal writing scholarship. The ‘toolkit’ metaphor runs through many different types of academic legal articles.

Shop Class as Soulcraft was published in the summer of 2009 to commercial success and largely positive reviews. The book grew out of a magazine essay Crawford originally published in 2006. One of the most powerful images in that original essay, one that stuck with me over the intervening years before the book was released, was his description of his aesthetic reaction as a young electrician:

I was sometimes quieted at the sight of a gang of conduit entering a large panel in a commercial setting, bent into nestled, flowing curves, with varying offsets, that somehow all terminated in the same plane. This was a skill so far beyond my abilities that I felt I was in the presence of some genius, and the man who bent that conduit surely imagined this moment of recognition as he worked. As a residential electrician, most of my work got covered up inside walls. Yet even so, there is pride in meeting the aesthetic demands of a workmanlike installation. Maybe another electrician will see it someday. Even if not, one feels responsible to one’s better self. Or rather, to the thing itself – craftsmanship might be defined simply as the desire to do something well, for its own sake.

One of Crawford’s goals in both the original essay and his later book was ‘to understand the greater sense of agency and competence I have always felt doing manual work, compared to other jobs that were officially recognised as “knowledge work”.’ Manual work is more likely to be ‘meaningful,’ in his view, because it is more likely to be ‘genuinely useful’. That is, the psychic imbalance he identifies between manual and knowledge work comes from the greater ‘usefulness’ of the former, the tangible sense of accomplishment that comes from working with one’s hands on an actual physical object, and seeing the results of one’s labour when, for example, a previously balky engine throbs with renewed power. The disparity also is measured in terms of self-reliance: a mechanic works by himself, segregated (at least for a while) in the grime and fluorescent light of a garage from larger societal ‘channels that have been projected from afar by vast impersonal forces’. These ideals of meaningful work and self-reliance, in turn, are ‘tied to a struggle for individual agency’, which he believes to be ‘at the very centre of modern life’.

A question that then arises is whether this sense of agency and competence can be replicated in an attorney’s work. I do not read Crawford to imply the contrary. He does not dismiss the possibility that knowledge work can inspire a sense of agency and competence. Rather, he simply believes the odds to be skewed against the knowledge worker as compared to the manual labourer.

The critical question raised by Martin and Rand is whether law professors can replicate that feeling in students who are in training to become lawyers. Their answer is simple: Yes.

I want to begin with a quick example of what I have in mind for how legal writing professors can use ‘real’ tools to help drive home lessons about legal tools. In the context of a discussion about legal research, display a picture of a collection of wrenches. In the middle is a wrench with an unusual-looking V-shaped open end (as contrasted to the more familiar C-shaped open end or closed end ‘box’ wrenches). Ask whether anyone knows what the wrench in the middle is called, and what it’s used for. Aptly enough, it’s an alligator wrench, used in pipefitting to hold different size tubes without needing to adjust the wrench’s jaws. Follow this up with a quick picture of a collection of research materials, such as a library table covered with treaties, digests, loose-leaf binders, and so on, and the connection becomes obvious. The collection of wrenches confronting a mechanic reaching in his toolbox is analogous to the various types of research sources research tools – that students must choose from when pursuing a research assignment. All of these tools are basically similar in form and shape, but subtle (and sometimes not so subtle) differences can have significant consequences for the way the tool is used, and what it’s used for. The trick for the mechanic, and the student researcher, is to learn how each tool can best be used, and then to choose the right tool for the job.

As I see it, students don’t need to have direct familiarity with the particular ‘real’ tool the professor uses as the basis of a comparison for the comparison to be effective. The specific tool itself doesn’t matter; the creative problem-solving process inherent in using any tool does. In other words, thinking of the lawyer’s trade in terms of ‘real’ tools might help students visualise the process by which a lawyer accomplishes a goal. By encouraging them to draw analogies from their creative experiences (of whatever nature) with physical tools (of whatever sort), they can recall the process of learning a skill over time, of the satisfaction of completing a project, with all the bumps in the road that might have entailed, the mistakes and do-overs and curse words and so on.

In the end, the goal is for the student to recall the sense of accomplishment and achievement from having produced something tangible. In doing so, perhaps they can escape the false dichotomy that many of them have probably internalised: the distinction between knowledge work and manual work. Students intuitively understand that when working with their hands, success will come only with hard work, with (figurative or literal) grime under the fingernails and skinned knuckles. Students don’t need to be convinced of this; most of them – all of them, I’d venture – have experienced this in some way or another.

Why should this hard-earned experience be hidden away when the students cross the divide and engage in knowledge work-that is, in intellectual labour? It needn’t. As Crawford and other authors have warned, the divide is a false one, but it’s one that students are trained to be wary of and reinforced by myriad societal cues. Many students have made it to law school having succeeded in their academic ventures. The work of the mind has been one of almost constant achievement. Now, for many, they are faced with something they haven’t been forced to deal with before: academic challenges, obstructions to their intellectual abilities. No wonder many of them retreat into a shell when they receive the first C+ they’ve ever seen on one of their exams or papers. If we can bridge the gap, and make them see the connection between their current difficulties with the academic rigours of law school and comparable difficulties in their prior experiences with the physical world, perhaps they will be more likely to draw from that comparison the conclusion we’d like them to reach: all is not lost, and the possibility of success still lies within their grasp.

Martin and Rand’s emphasis on learning rather than performance goals is consistent with one of Crawford’s running themes. He is not a craft mechanic, but rather a working one, with bills to total up and clients to satisfy. In such a trade, obsessiveness is not always a virtue, and a perfectionist’s need to be ‘responsible only to the motorcycle’ ignores duties to ‘another person, with a limited budget’. Forgetting this means focusing solely on the end result, the final product – the perfectly restored motorcycle, at whatever cost, or the A in legal writing – and not the process of getting there.

Don’t get me wrong. Perfection is a noble goal and students should not be dissuaded from pursuing it as an ideal. But there’s danger in this, because having overly high standards can lead to paralysis. We dither and tweak, massaging a word here and running down an obscure point of law there, just to ensure that all the bases are covered and nothing is amiss. One of my favourite legal websites, ‘What About Clients’, calls perfectionism the ‘Great Destroyer of Great Young Associates’ because it leads attorneys to be ‘so stiff and scared they can’t ever turn anything in because they want it “perfect” and they keep asking other lawyers and courts for extensions’. How many of our students turn in their papers late for the same reason, or delay even starting a project because they don’t think they’ll be able to achieve the level of quality they think is demanded of them? We do our students a valuable service if we occasionally remind them that they can represent their clients well, and take justifiable pride in their work, without being perfect.

Downplaying the quest for perfection, in turn, feeds nicely into another of Martin and Rand’s key recommendations. Mistakes are inevitable, and, sometimes, not just mistakes but out and out failure. But, as Martin and Rand note, encouraging students to learn from any such mistakes helps reinforce the agentic and pathways thinking that is characteristic of high-hope students. According to Crawford, mechanics try to fix problems they did not make, and deal with failure every day. Here, Crawford brings philosophy into the mix via Aristotle and the stochastic arts, such as medicine, which by their nature cannot be fully effective. Inevitably, patients die, despite a doctor’s best efforts. But this need not be a reflection on the ability of the doctor, or mechanic, or scientist, or artist. ‘Mastery of a stochastic art is compatible with failure to achieve its end’. That is a wonderful thing to convey to law students, because much the same can be said of studying for and practising law. Students flub exams, lawyers lose cases, and sometimes there’s not much that could have been done to prevent it. Clients walk through the office door with problems that realistically cannot be fixed, only alleviated to the extent that circumstances allow.

One last bit of overlap derives from Crawford’s general criticism of many academic environments as artificial, contrived, and hindrances to true learning. Per Heidegger, the way we know a hammer is not by staring at it, but by grabbing and using it. This requires hands-on experience, not simply theory. This comes as little shock to legal writing professors, who know that the best assignments are those that are the most realistic, and that students can develop their legal skills only with practice, and lots of it. Nor is this news to practising lawyers, who know that attorneys can’t rely solely on legal rules to resolve a case or convince a court, but must couple those rules with an actual set of facts.

Martin and Rand have identified numerous ways in which legal writing professors can help inculcate a sense of hope in their students. But I wonder if, at least in the present economic downturn, we aren’t whistling past the graveyard just a little. Martin and Rand use the term ‘hope’ in a specific sense, as a collection of discrete psychological attributes. What about a more colloquial sense of the term? The stress of law school fosters anxiety in even the best of circumstances. How can we engender hope, however we might define that term, if students believe the employment tournament they are about to enter is stacked against them even more than usual?

Law students know the job market they are likely to face. Well-intentioned commentary from law professors suggests that prospective law students look closely at the decision to enter law school. But despite this advice, the Law School Admissions Council reports that the number of law school applicants rose five per cent in 2009.

Moreover, students know that even if fortune shines and they do get a job after graduation, life might not be rosy. Television shows portray the glamorous life of new associates in ritzy offices; students know the reality for many of them upon entering the profession will be quite different.

Let me paint an admittedly dismal portrait. This broad-brush depiction, drawn in part from aspects of my own legal experience, is woefully incomplete, but still accurate so far as it goes. In practice, we file motions that are then settled without argument, write briefs we suspect many judges only cursorily read. We draft witness lists for cases that are never tried, and prep experts who will never testify to a jury. We negotiate and draft and re-draft contract provisions to cover contingencies that will never arise. The substance of what we do vanishes, leaving us with, perhaps, more ‘experience’ in whatever task we had been engaged, but with nothing tangible to show for it other than stacks of paper or hours on a billing sheet.

If law students know, or suspect, or fear that this awaits them in some form, then a legal writing professor’s best classroom practices, however beneficial at the time in terms of inculcating hope, might turn out to have only a temporary effect. So the inquiry must necessarily turn to whether professors can do anything that might have a lasting effect on students after the first year, when they have progressed either to upper-level classes or to the actual practice of law.

We can and should focus on what we can control during our time with the students, striving to contribute to ‘the sense of agency that the acquisition of technical knowledge and skill provides.’ To focus on the constraints that might affect students down the road after the first year ‘is to miss what it means to someone to gain through tangible, demonstrable skill the ability to exercise some control, to give some direction to things, to feel security within reach ... This sense of agency, this imagining of a future not turbulent, spawns longer views, elaborates purpose’. This, in other words, is the ‘relation of skill to hope’. Be happy with what we can do because that alone is a powerful thing; there is no shame in not being able to resolve matters that exceed our control.

Among all of the other lessons we try to convey to our students, perhaps there is room to convey the sense that whatever they end up doing in the practice of law, they should enter into it with the expectation that they do this as a way to bring meaning to their life, over and above providing material necessities, vital though those might be. I speak here of law as a vocation, not merely ‘just a job’ or even a ‘profession.’ That is, I refer to practising law as itself a source of satisfaction, not merely of material wants, but spiritual as well.

Does law offer a tight connection between ‘life and livelihood’? Crawford doesn’t say, but the examples he gives of vocations that might make this connection possible due to the very nature of the work leave hope that law too might find a place: ‘A doctor deals with bodies, a fireman with fires, a teacher with children’. In his eyes, teachers, to be true teachers, love their children, and most mechanics work on cars because in some way they love cars. We need not get hung up on whether lawyers should love their clients. Instead, simply consider whether lawyers should think of their clients as something more than just the person (speaking loosely) for whom the lawyer provides services. They are not just the means to the lawyer’s provision of services. They are ends in themselves, and worthy of respect and recognition.

I don’t want to extend Crawford’s thesis further than it can bear. He emphasises the tangible world, the ‘experience of making things and fixing things’. Court briefs and contracts can be printed on paper that can be touched and held and crumpled up and cast away, but I’d hesitate to stretch the analogy too far between preparing a memo and tearing down and rebuilding a carburettor. Still, as Crawford notes, meaningful work and self-reliance are both tied to a ‘struggle for individual agency’, and that applies across the board, whether in a garage, law office, or classroom. Speaking very broadly, if we want to engender hope in both Martin and Rand’s specialised sense and a more colloquial meaning, we must ensure that students know (or at least suspect) that what they’re learning will be useful to them.