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Washington Lawyer

Are We Listening?

From Washington Lawyer, January 2015

By Catherine H. Finn and Claudia Diamond

Here’s How the Profession Can Advocate for Reforms in Legal Writing Education

Dog with cup to ear. Photo by Javier Brosch/Veer.With the 2008 economic downturn and continuing changes in the legal hiring marketplace, many law schools have announced new programs and curricular changes under the label of making students “practice ready” and more marketable to potential employers. Although the goal of graduating practice ready law students is laudable, the phrase, practice ready, does not define the specific concrete skills and competencies that one needs to perfect.

In the legal academy, the discussion surrounding the goal of graduating practice ready students has suffered from an echo chamber effect. Legal writing faculty inevitably defines practice ready as having excellent research and writing skills. Members of the faculty who teach traditional “casebook” courses may insist that the Socratic method remains the best way to provide the critical thinking skills necessary for the practice of law. Clinical professors stress hands-on practical experience and client contact as indispensable. Thus, beyond the label itself, little consensus exists in defining practice ready to include a specific set of competencies that must be mastered so that graduates are ready to join firms, the government, or nonprofits; open their own practices; or, as increasingly is becoming the case, work in jobs identified as “J.D. advantaged.” Although legal writing faculty may be in the business of teaching writing and research skills, whether the teaching of these skills is making students ultimately practice ready for their chosen workplace is not always readily apparent inside the halls of law schools.

As former practitioners who teach legal writing to first-year law students, we realized that the one voice often missing from the public discussion on how to prepare our students for practice was that of the actual lawyers who hire and work with our students. Was there something extra that law schools, and particularly legal writing programs, should be doing to ensure that students arriving at their legal employers’ doorsteps were indeed ready to write as practicing lawyers? Was the traditional first-year writing curriculum, which typically focuses on drafting client memos and court documents, still sufficient? What message, if any, did employers want us to hear in connection with training law students to be practice ready, particularly in the arena of legal research and writing?

To help us answer these questions, and with the goal of making us better teachers, we decided to conduct an informal Web-based survey of lawyers in the Washington, D.C., and Baltimore region where we work. Although we recognized the limitations of a Web-based survey to permit in-depth research, we determined that the advantages of flexibility, convenience, and ease of data entry and analysis would give us a chance quickly to take the pulse of the legal marketplace and identify whether there was consensus concerning specific writing skills that practice ready students should have mastered upon graduation. We were also interested in identifying whether lawyers saw shortcomings in the students’ ability to write upon arrival in the marketplace, and, if so, what were the specific deficiencies. We used Survey Monkey, a free Web-based survey tool, which allowed us to easily create a survey, reach a diverse sample, and immediately analyze the data. Designed to take fewer than 10 minutes to complete, the survey had 11 multiple choice questions, and responders were permitted to include text comments in connection with any of their answers. Many responders did provide comments.

To distribute the survey broadly, we e-mailed practitioners and judges we knew in the region, asking them to complete our anonymous survey and included a link. In addition, our e-mail asked the recipients to forward the survey to their networks. We received nearly 300 responses in fewer than two weeks. We then closed the survey and began to analyze the results (not all questions in the survey were answered by each survey-taker).

Although our initial goal in designing and executing the survey was to improve our own teaching, when analyzing the responses, we soon realized that our results could inform the larger debate on how to improve on the value of legal education in light of the seismic shifts in the legal employment market. Through this exercise, we set out to hear the voice of legal practitioners in this debate with a view to improving what we do on a daily basis. However, after reviewing the responses, including the text comments, we concluded not only that practitioners’ voices should be heard, but also that they have an important role to play in advocating for or against particular reforms and curricular decisions happening in law schools.

Who Responded?
Our survey first asked the respondents to identify their professional role: An attorney in private practice (divided into subcategories for firm size or solo practice), a government attorney, a judge, or a non-practicing attorney. The majority of survey-takers indicated that they were attorneys in private practice with firms (47.6 percent), with attorneys affiliated with small firms (2–19 attorneys) constituting the bulk of respondents in this category (23.5 percent). Attorneys identifying themselves as employed with a medium-sized firm (20–75 attorneys) or a large firm (76+) had almost identical response rates of 12.7 percent and 11.2 percent, respectively. Perhaps because of our focus on the Washington metropolitan area, 28.8 percent of respondents indicated that they were government attorneys, representing the largest specifically defined category. As expected, judges accounted for the smallest number of respondents (6.5 percent). Our sample of 300 practitioners is representative of the diversity in traditional law practice. (We did not survey people working in J.D.-advantaged positions.)

We next asked survey-takers whether they had any supervisory responsibility. We designed this question to see whether those in the most likely position to actually do the hiring of our graduates and to assess their skills responded. Nearly half of those polled responded that they supervised other attorneys, with the bulk of these respondents supervising fewer than five. Considering that supervising attorneys are at the front line of managing and mentoring young attorneys, their relatively high response rate suggested to us that they had particular concerns they wanted to raise.

We also asked survey participants whether they continue to rely on the traditional writing sample to assess a prospective hire’s writing skills. Eighty percent confirmed that they continue to prefer this method. Interestingly, a few responders indicated that writing samples were not considered because training would be “on the job.” At the other end of the spectrum, some responders indicated that they have candidates complete a writing test.

What We Learned
As for the substantive responses we received, the results were both reassuring and surprising. The results confirmed what we in the legal writing academy have known for years: First-year writing instruction cannot be expected to sufficiently accomplish all the writing instruction in law school when gaps in basic writing skills must first be addressed. Our results, however, also had some surprises. For one, practitioners are not asking us to abandon our traditional focus in the first-year writing curriculum on having students draft comprehensive and fact-intensive memos and court documents. Regardless of where our students work after graduation, these assignments, which cultivate analytical, organizational, and research skills, have tremendous merit.

In addition, and less surprising, many respondents commented that new graduates often were deficient in the very skills the first-year legal writing curriculum is designed to teach. Through their responses to our brief survey, the message came through loud and clear: Law schools need to step up their efforts to develop students’ critical thinking and writing skills. This message was not unexpected, considering the answers to the question, “how much do you write in your job?” Almost 70 percent of the responders said that they spent more than 50 percent of their time writing, many of whom reported that writing consumed more than 75 percent of their workday. Of course, this confirms what we lawyers already know, but what law students and aspiring lawyers are sometimes surprised to learn: Lawyers write. A lot.

Asked to rank five legal writing concerns that they see most often in recent law graduates’ written work, practitioners spoke with a unified voice. The top three problems— grammar/usage, poor structure/organization, and passive voice/awkward sentence structure—were almost identically ranked as the top problems. To our surprise, however, the remaining two areas listed on the survey—use of legal authorities and plagiarism—were ranked far behind basic writing skills. This large difference between the top three problems and the remaining two underscores that practitioners more than ever are requesting that we focus on the basics before focusing on writing issues that are unique to legal practitioners—legal research and attribution. Indeed, a frequent refrain in the comment section to this question was that students are not graduating law school with satisfactory grammar and syntax skills, and that these deficits undermined the credibility of their legal analysis. As one responder succinctly commented, these are “often very big problems.”

Please indicate the top three writing problems you see most often in recent law graduates' written work product.

Writing problems graph

We also surveyed practitioners regarding what they write in their own practices. As expected, e-mails were written more than any other documents. (E-mails also ranked fairly high as the product written the least in the survey-takers’ law practices, highlighting the diverse nature of the writing that lawyers actually do on a daily basis.) Letters, memos, and court documents all tracked closely as the second most frequently written work product. Transactional documents ranked last in terms of what our survey-takers write (which may be a result of the survey-takers being litigators and not transactional lawyers). With the deficits identified and the diversity of the writing actually taking place in law practice, the results, we think, support advocating for having students writing more—a lot more—and writing a wider variety of products in the first year (or even advocating for a writing-across-the-curriculum approach, incorporating, for example, the drafting of e-mails, letters, and transactional and court documents as assignments in doctrinal classes).

Please indicate which of the following you are most likely to write in your practice. (Rank 1 through 5 with 1 being the most likely and 5 being the least likely.)

Writing type graph

The survey results, however, also reminded us not to abandon our traditional curriculum, which requires students to draft comprehensive client and trial memoranda and court briefs as a way to teach the skills that are unique to law school pedagogy (learning how to “think like a lawyer”). This is true even in positions that may not require the lawyer ever to write a memo, let alone a court document. Many practitioners commented that drafting the traditional memo and court documents, such as a trial memo or appellate brief, provides a great opportunity for students to develop their analytical and organizational writing skills, regardless of whether they will be drafting such documents in their future careers. (Although graduates increasingly work in J.D.-advantaged positions, which do not require bar passage or an active law license, the advantages conferred by the J.D. are the analytical and critical thinking skills that are the essential foundation of a law school education.)

In addition, and somewhat surprising to us, our survey confirmed that the traditional memo format (issue presented, short answer, facts, and analysis) remains widely used to communicate answers to the questions raised by clients’ legal issues. Sixty-two percent of respondents answered unequivocally “yes” to the question whether they and their colleagues still used the traditional memo format. Eighteen percent of respondents said that the memo format has changed to one that is less formal and offered explanations from “we’ve shortened what is required” to “it’s less formal because we e-mail clients and they want the answers in the first paragraph.” A few responders indicated that new hires (or law clerks or interns) are required to use a traditional memo format initially in practice as a means to further hone their analytical skills.

Finally, the question that yielded the most eye-opening response asked survey-takers to list the areas in which they believe recent graduates are deficient. Of the skills ranked by our responders, six are traditionally taught in first-year legal writing classes: Critical thinking/analysis, legal research, oral advocacy, grammar/punctuation, objective writing, and persuasive writing. Two additional skills that were ranked—client development and transactional drafting—are not traditionally taught in the first year. Overwhelmingly, the number one skill that our respondents believe recent graduates lacked was critical thinking and analysis.

Please indicate the top five skills listed that you believe new lawyers most need to improve. (Rank from 1 to 5 with 1 needing the most improvement and 5 needing the least improvement.)

Legal Skills graph

This is both good news and bad news. The good news is that it confirms our view that the responsibility of first-year legal writing instruction is much more than just teaching basic writing skills. The bad news is that employers believe that our students are still graduating without these essential skills.

We concluded the survey with a final question asking responders to provide specific advice to law professors to improve the teaching of legal writing to law students. A frequent refrain was that young lawyers did not know how to review what they wrote, did not target their writing for the particular audience reading it, and did not write concisely and clearly. Practitioners told us that law professors must hold students accountable for a litany of concerns including “poor grammar and typos, use of the passive voice when inappropriate, legalese, poor organization, and lack of critical analysis.” Teach students how to “avoid fluff [and to] get to the point,” wrote one responder. To do this, practitioners acknowledged that law students cannot be taught appropriate writing and critical skills without an opportunity to write, receive extensive feedback, and revise. “Practice, practice, practice,” insisted one responder. Another encouraged writing faculty to “[f]ear not the red pen. Give specific edits/critiques and review several drafts. At the end of the assignment compare their first and final drafts to demonstrate improvement.

“Emphasize that many drafts, reviews, and edits are necessary to properly prepare a document and that a fear of this work will lessen the quality of their product.”
The advice our respondents gave us echoed the responses to the multiple choice questions: Continue to stress foundational writing and analytical skills.

Ammunition for Advocacy
From the responses we received, we conclude that not only are the core skills traditionally taught in the first-year writing program relevant to the goal of creating practice ready students, but that an even greater focus on these core skills is necessary. The critical thinking and analytical skills required for writing a brief are the same as those required for drafting a will or a contract or advising the chief executive officer of a corporation. Before law schools expand programming or adopt new curricula to make students practice ready, however, they must also ensure that students can master the fundamentals of good writing that are applicable to whatever law practice that they wish to pursue. For legal writing faculty, the challenge is to accomplish this without adding more into what is already a crammed first-year writing curriculum while also recognizing that recent graduates, as confirmed by our survey results, are showing up in greater numbers for their first legal jobs with deficits in basic writing skills. Accordingly, for the legal practitioners reading this article and nodding their heads in agreement about the deficits identified by the responders, there is a role to play. We urge you to inform yourselves about reforms in legal education and advocate for (or against) changes in curricula or programming that you view as beneficial (or detrimental) in ensuring that your potential hires are better prepared for entering the marketplace.

Fortunately, recognizing that law schools must do more to make their students ready to practice law in the 21st century, many law schools are already experimenting, sometimes very rapidly, with changes in curricula and programming. Obviously, the diversity and extent of these reforms are affected by budgetary constraints, degree of consensus among faculty, and direction from the law school administration. The changes should not be done in a vacuum, however, without employer input and endorsement.

To address students’ deficits in writing and critical thinking, schools are adding programming or curricula outside the traditional classroom teaching model. For example, law schools have created writing centers, staffed by students or faculty. As the law student population has grown to include non-native speakers, schools are developing additional instructional resources for these students. Academic support programs, although traditionally focusing on study and exam skills, are realizing that such skills can no longer be addressed without working on overall writing ability. Accordingly, many of these programs are now providing additional opportunities for critical feedback and revision. Schools are experimenting with the “flipped classroom” (e.g., the student hears a lecture online about legal citation and does problems in class with the instructor to review the lesson learned) and increasing the availability of online teaching resources such as grammar diagnostic and writing tutorials. Even before students matriculate to law school, a few schools are providing summer “boot camp” experiences, which are designed not only to introduce students to the basics of study and exam skills, but also to address new students’ grammar and syntax deficits.

The same changing economic conditions that have affected the legal hiring market are affecting the law schools themselves, in the form of decreased enrollment and tighter restrictions on budgets and other resources. At the same time that the marketplace is urging innovative reforms, some law schools are being forced to cut back. Above all, our survey confirmed that the academy and the profession both share the goal of improving students’ mastery of the foundations of legal analysis. Achieving this shared goal requires shared action. The law schools need to hear from the practitioners. Are these reforms working, and if not, why not?

Just as the law schools inherit the strengths and weaknesses of their students’ earlier educational experiences, so, too, do the practitioners inherit the strengths and weaknesses of their new lawyers’ law school education. Practitioners should not only voice their concerns but should be active in the process in shaping what the new law school landscape will be in coming years. This can be as simple as touching base with one’s alma mater and keeping abreast of media reports of changes in law schools. Those inclined to be more involved can actively seek out opportunities through participation in focus groups, interacting directly with faculty, teaching at law schools, and giving feedback to the law schools’ deans. These efforts greatly benefit law students, the law schools, and legal employers, and ensure that not only are lawyers being listened to but that their voice matters in creating the 21st century law school experience.

Catherine H. Finn teaches legal research and writing and advocacy at The George Washington University and the University of Baltimore. Claudia Diamond directs the Introduction to Advocacy Program at the University of Baltimore School of Law. They can be reached at [email protected] and [email protected], respectively.