9.1 – Understanding Legal Writing

Transcript

Understanding Legal Writing

This course so far has mostly focused on preparing you to succeed in the kind of classes that we call doctrinal or podium classes, law school classes where you learn an area of law and then take an exam at the end. I wanted to reserve a little bit of time to talk about some of the other kinds of classes you might take in law school. You might take some of these classes your first year, and then you could also take some of these types of classes in your second and third years of law school.

The three big types of law school classes I want to talk about that are different than doctrinal or podium classes are legal research and writing courses, seminars, and then clinics or simulation courses. In this lesson, I want to start out by talking about legal research and writing classes. Now, in most American law schools, there's some kind of required legal research and writing instruction in the first year. Sometimes research and writing are broken up into different courses, often they are combined into one course.

Importance of Legal Research and Writing

Useful for your summer job and understanding other legal classes

How exactly to succeed in legal research and writing is something I've thought about a lot because I spent three years before I was a professor teaching criminal law and procedure, I spent three years teaching legal research and writing at Harvard. I saw a lot of things that students did. I saw what made students particularly successful and I saw some common mistakes that students made in those type of classes. These are important classes. In some ways, you'll find that the skills you develop in your legal research and writing class that first year are the most immediately useful things you're going to learn that first year.

When you go off to your first summer job, say, after your first year, having developed the ability to do legal writing and to do legal research is going to be critically important for you to be able to contribute in any way in your first legal job. These classes, you want to take them seriously. You want to try to do well in them. Sometimes they're graded differently than your doctrinal classes, sometimes they're graded on the same scale, but either way, I think that you should try to succeed in these classes in the same way that you're trying to succeed in your other classes.

How to Succeed in Legal Research and Writing Class

How are you going to do that? The first thing I want you to try to understand when you're approaching a class like this is that you're going to be asked to do some kind of legal writing. Often you're asked to write memos where you describe the law. A very common pattern is in your second semester, you'll be asked to write a brief in which you argue for a particular legal result on behalf of a hypothetical client. You're doing both what we call the objective writing, where you just state what the law is, and persuasive writing, where you try to convince some decision-maker of what the law should be.

The thing that I want you to understand is that legal writing is fundamentally different from other kinds of writing you may have done coming into law school, and that's going to be true whether you're an English major or an engineer, or really any background, is legal writing is really its own thing. What it is, is maybe different than what you might think it is. I think we've all seen contracts we've had to sign, all sorts of contracts every time you download a new piece of software, and you see these really long documents that are full of legalese and they're very hard to read, and you think, "Okay, that's what legal writing is."

Legal writing is designed to carefully guide a reader through legal analysis.

It's just writing things that are really complicated and unclear and use lots of Latin phrases and things like that. I don't think that is what legal writing is or at least what it should be. I don't think that's what your instructors want you to try to do when you're trying to succeed in a legal writing class. Instead, legal writing, you should think about it as a style of writing that is designed to walk a reader very carefully through legal analysis. It's going to follow certain formulas in how we explain conclusions and how we walk the reader through reasoning, and it's going to follow a very, very clear and logical structure.

Understanding CRAC

Conclusion, Rule, Analysis, Conclusion

You want to really do your best to internalize the norms of legal writing and the structure of legal writing. Your instructor in a legal writing class will probably explain this to you early on and there's different kinds of acronyms that are used to summarize. This one that we used in the Harvard Legal Research and Writing Program was CRAC: Conclusion, Rule, Analysis, Conclusion. The idea is, anytime you're talking about a legal issue, you state your conclusion as to that issue. Then you state the legal rule that led you to that conclusion.

Then you apply that legal rule to the facts of the matter at hand, and then you state your conclusion again. Now, it might seem redundant, it might seem repetitive, but the idea is you're really, really trying to be as clear as possible. Someone can read this and have absolutely no doubt about what you're saying the answer is. This is different than how you might've done an English essay or something where you just suggest some topic at the beginning and you work your way there. You're not hiding the ball at all. You're trying to be really, really clear.

Structuring Your Writing

Structure is also incredibly important, especially as you're writing more complicated documents like briefs. You need to think really, really carefully about what is the exact structure of this brief or of this memo. Let's say you've been asked to research an issue and there's actually three independent but related legal issues involved, and your client needs to win on all three of them. Well, your memo probably needs to have three big headings.

Then maybe one of the three issues that you're researching, turns out there's actually two. It's a two-prong test there, then that part of your memo needs to have two subparts. It's going to be 3A and 3B or something like that. You need to really, really think carefully about the structure, about the outline at the outset. You're going to have to do a little bit of research and thinking about that before you get to that point. That structure has to really flow and really connect to the actual underlying logical structure of the legal issues.

What's critically helpful about this is, I think, doing this and understanding how to do this in the context of a legal writing class is going to be very, very good preparation for you for actually writing law school exams, because effective legal writing that you're going to do in the context of a legal research and writing class is going to translate very well to effective legal writing on an exam. The skills you're going to develop in this class are going to translate very well to exam writing.

Knowing the Reason for Writing

Other things to recognize is that in any class like this, you're writing for a particular person, you're writing for your instructor, and you should really think of your instructor as if your instructor is like your supervisor. If you're a young lawyer and this is the partner you're working for. Anything that your instructor says is, "I really like things that are structured this way," or, "I really like this particular kind of legal writing." You got to really try to emulate that, and so to the extent that your instructor gives you model memos, model briefs, things like that, that the instructor has thought were really successful, you just want to mimic that as much as possible.

There's nothing wrong with that. I don't mean copy it word for word. I don't mean plagiarize from it, but I just mean, try to really channel the style that your instructor thinks is useful and well written and clear because that is going to be most likely to produce a good result for you. You also may, depending on how the class is structured, it's very common for these classes to be structured in a way that you get a lot of feedback on your writing.

Getting Feedback on your Drafts

Make a very good first draft.

One common way for a legal research and writing class to be structured is you turn in a draft and then you get some feedback and you revise and you turn in a final, and your grade is actually based on the final that you turn in. A couple of things there.

First of all, make that first draft as good as it can possibly be. Don't just think, "Well, I'll do a cursory job in the first draft and then I can figure everything out by the end." That's a real wasted opportunity, because if you can do a really great job and you can write a B+ first draft, and then you can follow all of the advice you get from your instructor, you can turn that B+ into an A answer.

Whereas if you write a sloppy B- first draft, even if you follow all the advice you get, you're not going to be able to get it all the way to an A, because the instructor has only so much time to give you tips. There's only so much your instructor can do to get your draft from good to great. If you start out with something bad, it's really just going to get to mediocre. Listen to all that feedback, really internalize it. The one thing your instructor really is not going to like is if she says, "I really want you to add some more cases from this jurisdiction," and you don't do that.

The instructor's just going to think, "Wow, this person didn't really take my advice very seriously." Do everything that you were told to do and do it carefully and take it seriously. Attention to detail. This is something that I think is important in any kind of writing you're doing, but it's particularly important in law. Proofreading, minimizing and eliminating typos, getting citation forms correct. These things just matter because part of our job as lawyers is turning in documents that go to clients or that go to courts, and that look really professional.

How much time you spent polishing is going to be a reflection not just of how polished it is, but actually how good the underlying analysis is. It shouldn't actually work that way, but it does. If you get a brief that just has typos in it, even if the analysis is really good, the reader is going to think, "This just doesn't look as solid to me." He's going to look at it a little skeptically. So try to make it look really nice.

Train in Research Tools

Know how and where to look for answers.

Then finally, I've talked a lot about writing. Let's talk about research a little bit, figure out how to do research effectively. You will get some training from librarians on how to use tools like Lexis, Westlaw, Bloomberg Law, things like that. Ultimately, there's no substitute for just spending some time logging some hours in front of the computer and learning how all these different searches work, trying a bunch of things. It's a skill that you're going to have to develop. You're not going to just be good at it instantly, but the thing you have to realize is you can't just punch in one word and then you get the most relevant case right away.

Instead, you're going to have to really learn how to do searches. There's different ways to do searches. There's different kinds of keywords to look for. There's different kinds of ways to look for different kinds of language. There's really nothing you could do other than just practice and maybe get some tips from other people that have gotten good at it. The more time you put in now at the front end, just learning how to research, how to find relevant cases, that is going to pay off so much later in your career.

If five years from now, you're someone who very quickly can find the relevant case law on any given topic because you've just gotten really good at figuring out where to look, you're going to find that an immensely valuable skill as a young lawyer. Do what you can now to get good at it. The students who do a better job finding the relevant cases, they're going to get better grades on their essays, particularly ones for which you're required to do outside research.

A very common way for these classes to work is your first assignment, you're just given the universal cases. You're supposed to read and you read them carefully and try to figure out what the relevant rules are, pay attention to what jurisdiction they're from, and so forth, but then in subsequent assignments, you're on your own. You've got to go out there and figure out, where do I get cases from? You want to be really thoughtful. What jurisdiction are you in? If you're in California, focus on California cases, don't look at cases from Alaska, unless that's the only thing you can find and you have to analogize.

Concluding Remarks

Legal research and writing classes, they consume a fair amount of time, so you're going to need to figure out a way to balance working on them during the semester with doing your reading for your doctrinal classes. The work you put in, you're really going to get good returns on later in your career.

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