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Making effective use of practitioners' briefs in the law school curriculum.

 I. Introduction

 II. The Pedagogy Supporting the Use of Practitioners' Briefs to Teach
 Persuasive Writing

III. The Process of Using Practitioners' Briefs to Teach Persuasive
 Writing

IV. Going Beyond the Legal Writing Classroom: Using Practitioners'
 Briefs to Teach Analysis in Casebook Classes

 V. Conclusion


I. INTRODUCTION

Many law students attend school for three years and go on to graduate, pass the bar exam, and begin practicing law without ever reading court documents produced by practicing attorneys. (2) This happens because although law schools teach students how to write many of the documents that are produced for court, rarely do professors use these documents (3) in the classroom to teach. (4) Instead, professors assign edited case opinions in text books for law students to read. (5)

Case opinions are useful to teach students the law. They are, however, just end products, and consequently, show students only how a case concluded, not how it began or how it was argued or how it progressed through the legal system. (6) This lack of exposure to legal arguments can leave students with an incomplete understanding of the legal process.

Providing students with practitioners' briefs filed in cases they are studying enhances students' learning by exposing them to more legal methods and practice. Although practitioners' briefs could be introduced effectively throughout most of the law school curriculum, one course that would greatly benefit from their use is Legal Writing and Research. Most practicing lawyers depend heavily on their persuasive writing skills. (7) Consequently, most legal writing professors spend a great deal of time, often an entire semester, teaching law students how to write the basic types of persuasive documents that attorneys routinely file in court. (8) Professors do not, however, traditionally ever show students actual briefs that have been used in court. (9) The use of practitioners' briefs by law students is seen as harmful for many reasons. The pedagogical reason for making such briefs taboo arises from the fear that if students refer to these documents, they may not develop the ability to think and write independently. If the brief is well-reasoned and well-crafted, students will not have the opportunity to work through an analysis of the issues independently. On the other hand, if it is not well-reasoned or well-written, reading it is likely to hinder students in their efforts to analyze the legal issues presented.

The current state of technology, however, makes practitioners' briefs increasingly accessible to students. (10) Law school students today are quite adept at using the resources of the internet. (11) In addition, they now routinely have free access to the major electronic legal research services, Westlaw and LexisNexis. (12) Many courts nowadays also provide flee access to documents filed with them. (13) Expecting today's law students not to review practitioners' briefs when these forbidden materials are both so readily available and so obviously relevant to their assigned task, is becoming increasingly unrealistic.

Banning their use may also be disadvantageous to students. (14) An important skill possessed by all attorneys with strong research skills is the ability to locate the information most relevant to their assigned task and to know how to make use of it. (15) Pretending that practitioners' briefs addressing the issues assigned to students for analysis do not exist, or that they are not useful, does a disservice both to law students and to their future clients. The truth is that practitioners' briefs can be very helpful in learning the practice of law and attorneys in the practice of law often refer to them. (16) Practitioners' briefs can provide an understanding of how courts view certain arguments and thus provide insight into which arguments can work and which ones will probably not. This insight can be invaluable not only in crafting the practitioners' own arguments for the court, but also in helping students understand how to draft a winning argument.

This article argues that practitioners' briefs do have a place in the law school classroom. Part II of this article discusses the pedagogy behind using practitioners' briefs in the legal writing classroom. (17) It demonstrates how using practitioners' briefs enriches lesson plans, heightens interest in the classroom, and helps students gain a richer appreciation for lawyers' goals when they write as advocates. (18) Part III presents some different ways of using practitioners' briefs to teach persuasive writing. (19) It examines how the author has used practitioners' briefs to teach persuasive writing of the statement of facts, point headings and summary of the argument. (20) Part IV discusses ways of using practitioners' briefs in classes other than legal writing and suggests that by introducing the briefs behind the appellate opinions students read, students ultimately gain a stronger understanding of legal process. (21) Finally, the article concludes with a summary and a brief examination of potential pitfalls to avoid when using practitioners' briefs. (22)

II. THE PEDAGOGY SUPPORTING THE USE OF PRACTITIONERS' BRIEFS TO TEACH PERSUASIVE WRITING

During their first semester of law school, students are taught how to write objectively in their legal writing courses. (23) Thereafter, students often have trouble making the shift to persuasive writing in the spring. (24) During their first semester, students are routinely taught that it does not matter who their client is; rather, they are given a set of facts presenting a legal problem and are told to determine what the most likely outcome will be. (25) After being immersed in this mindset of conducting only objective analysis throughout the fall semester, students often feel apprehensive in the spring when instructions suddenly shift and they are told to advocate for a certain position. (26)

One way to help students make the transition from objective writing to persuasive writing is to show them actual persuasive documents that lawyers wrote for cases the students are now using to complete their assignments. Although there are a wide variety of documents to draw examples from, trial briefs and appellate briefs are most useful since these are documents students are most often required to draft in a legal writing course. (27) Using briefs that attorneys filed and courts relied on in deciding the cases students now are using to draw analogies and distinctions of in their persuasive writing assignments has several didactic advantages.

First, by using practitioners' trial and appellate briefs, professors can make their teaching more meaningful to students. Most legal writing professors employ the teaching technique of teaching by example in their classrooms. (28) One way of teaching by example is to present the goals to accomplish and mistakes to avoid while writing persuasively. (29) In sharing goals and mistakes, many professors provide strong and weak examples of persuasive writing for students to review and critique. (30) The strong examples used are often found in the legal writing text book that students read for the course, and the weak examples are often written by the professor. (31) By using these tailor-made documents, students are only exposed to what text book authors and professors consider to be the best persuasive writing techniques. (32) They are briefs written specifically for purposes of teaching persuasive writing. (33) For example, the strong briefs will lead with the best arguments, follow a logical organizational structure, provide on point authority for all legal assertions made, and provide compelling factual analysis. (34) In other words, they provide solid examples for students to emulate. The weak briefs will not be well organized, will lack focus, and will often not include enough authority. (35) These documents serve as examples of what not to do. Although both of these custom-made briefs are important tools in professors' teaching toolboxes, legal discourse in the classroom could be further enhanced by also introducing practitioners' briefs.

When practitioner's briefs are used along with other examples of persuasive writing, students are more likely to begin developing the ability to transfer the skills gained to new problems. (36) Through studying these examples, students should begin to develop a general skill set for writing persuasively. The briefs provide students with a deeper context for what they are asked to learn to do. This context, in turn, should help students understand the significance of what they are learning and strengthen their ability to transfer this knowledge to other projects. In using these briefs, professors need to be careful that students are not relying on them as templates. The briefs chosen need to provide students with ideas on how to best replicate the briefs' persuasive qualities and not necessarily the structure and organization presented.

A second teaching advantage to introducing practitioners' briefs from cases students are using and writing about is that students' interest will often rise when working with material they deem to have a vested interest in. (37) Law students are busy. (38) During their first year of study, they frequently feel overwhelmed by the demands put upon them. (39) Not surprisingly, many students have little patience or interest in reading documents they perceive as not being relevant to the problem they are currently working on for a grade. (40) Although there are many advantages to exposing students to these documents, (41) nothing captures their interest like a brief written by a lawyer on a topic similar to what they need to write about for a grade. Using these briefs encourages active learning by engaging students in critical reading and the evaluation of others' work. Students learn better because of their deepened interest in the material.

Third, using practitioners' briefs helps students understand what their goals will be as lawyers. As students, the basic goal is simply to get the best grade possible; the task is purely academic. (42) Providing students only with samples that are created solely for educational purposes creates a synthetic learning environment. Students write briefs to complete assignments that are based on fictional facts. (43) Reading briefs that were never filed in court as examples of what lawyers write, keeps students from ever seeing documents that were created under the demands of being an attorney. (44) Practitioners' briefs, on the other hand, are not written as an academic exercise. (45) Rather, brief writing for lawyers is a very task-oriented activity. (46) Lawyers write briefs to persuade courts to rule for their clients. (47) Using briefs that were written for actual clients and filed in authentic courts, can help to pull the real world of lawyering in students' views. It allows students the opportunity to see briefs created under time and business pressures. The briefs help students understand that as lawyers, their goals will shift from being academic to being problem-solving and results-oriented in nature. Reading practitioners' briefs allows students to witness how a lawyer "take[s] strategic action through legal argument in order to advance a client's cause before a court." (48)

Finally, using practitioners' briefs integrates "the teaching of theory, doctrine, and practice," a principle recently recognized as a "best practice for organizing the program of instruction" in Roy Stuckey's Best Practices for Legal Education. (49) Theory and practice have long been separated in legal education. (50) Some suggest the merging of theory and practice is an impediment to learning because it benefits only the teaching of practical skills and not the teaching of theoretical reasoning. (51) This approach to teaching students, however, is narrowly focused and fails to realize the benefit of providing students with opportunities to learn from both practice and theory-based instruction. Providing students with practitioners' briefs as a resource and learning tool helps to integrate theory and practice in the development of analytical skills. These briefs present students with the chance to examine documents created under the demands of both practical and intellectual concerns. (52) The briefs provide students with the opportunity to more fully understand how the analysis of doctrine, advocacy, and practice merge in legal writing and in legal practice. Allowing practitioners' briefs into the classroom helps bridge the gap between theory and practice.

Use of practitioners' briefs helps to achieve legal education's goal of "uniting ... (1) formal knowledge and (2) the experience of practice" in a manner that students find intellectually engaging. (53) These briefs help students understand why they are being asked to write certain documents as part of their legal education. Because the practitioners' briefs were written for judges who ultimately wrote the opinions students are relying on to write their own briefs, (54) students get to see case theories and persuasive writing techniques as they exist in legal practice. They help students appreciate that the skills they are beginning to acquire as students are the skills they will continue to hone throughout their careers as attorneys.

III. THE PROCESS OF USING PRACTITIONERS' BRIEFS TO TEACH PERSUASIVE WRITING

Practitioners' briefs can be used in a whole host of ways in the legal writing classroom to teach students how to write persuasively. While teaching students to write trial and appellate briefs, I have used practitioners' briefs to provide examples of statements of facts, point headings and the summary of argument section. The key to successfully using these briefs is to use briefs that were filed in cases resulting in opinions students are currently relying on to complete their assignments.

After teaching students how to write objectively during their first semester in law school, switching them over to a persuasive writing style can be a challenge. I have found that this challenge is lessened, and the task in fact simplified, if I provide students with persuasive writing samples taken from practitioners' briefs. I came upon the idea of using practitioners' briefs in the classroom one year when my students were having a particularly difficult time grasping how much of a literary license the lawyering profession granted in writing persuasively. (55) My students were stressed by the task of weaving a compelling tale in the statement of facts, while not exaggerating the positive facts and not disregarding the facts harmful to their client. I was getting questions such as: Was it acceptable to ignore facts?; Was it alright to make assumptions not directly presented in the fact pattern assigned? I decided the best response to these questions would be to provide examples modeling professional, yet persuasive, writing by lawyers.

That year I had assigned my students to write an appellate brief based on a hostile work environment, a sexual harassment problem. The problem involved a Hispanic male suing his employer in federal court for discrimination based on national origin, in the form of a hostile work environment. Students' research led them to Harris v. Forklift Systems, Inc., (56) a pinnacle Supreme Court case deciding that serious psychological injury is not required to prevail in a Title VII hostile work environment claim. (57) Through Westlaw, I was able to get a hold of the appellate briefs filed by both parties with the Supreme Court. (58)

I used only the statement of facts section from both the Petitioner's and the Respondent's briefs to illustrate to my students how the same story can be written to paint two very different pictures. I provided my students with copies of both statements of facts and asked them to find examples of different persuasive writing techniques we had discussed earlier in the course. For example, they were asked to locate examples of persuasive word choice, varying sentence and paragraph length, sentence placement, and use of detail. I also used the statement of facts to discuss appropriate tone when addressing the court in writing. Luckily, the briefs filed in Harris were very well written and provided solid examples for my students. (59)

My goal for the class was to have the students gain an understanding of how to tell a compelling tale that accurately, yet persuasively, chronicled their client's story. I was hoping that by seeing how two lawyers used persuasive writing techniques to address the Supreme Court in a case my students needed to use in their assignment, they would begin to understand how persuasive writing can enhance the telling of their client's story, without distorting the truth. The students' reaction to this exercise was very positive. First, the class needed to get past the question, where did you find these briefs? Next, the class addressed the question, can we find and use more of these types of briefs? (60) We were then able to conduct an advanced assessment of the statement of facts sections and discuss how each lawyer made his client's story compelling by using persuasive writing techniques.

The following year, I used practitioners' trial briefs filed in state court to teach point headings to my legal methods class. My students' assignment was to write either a brief supporting or opposing a motion to exclude character (61) and photographic (62) evidence in a murder trial set in Utah. This assignment gave my students their first exposure to point headings. I obtained briefs that were filed in the Utah Supreme Court in two cases that my students were relying on to write their trial briefs. I pulled the point headings out of the briefs and created four documents, each individually listing the point headings written in each of the four briefs. (63)

Not all of the point headings were strong. Interestingly, in one case, both practitioners filed briefs that had poorly written point headings; whereas the briefs filed in the other case, both had well-written point headings. I walked my students through the stronger point headings first, demonstrating to them what I believed made the point headings work: organization that outlined the argument, persuasiveness, following conventions, and readability. These provided wonderful examples of how to write point headings as positive assertions, and how to support each assertion made. My students dutifully followed along as I went through each strong example. However, I noted with disappointment that they did not seem overly enthused.

Not to be discouraged, I continued on with the weaker examples, this time putting my students in small groups and providing them with the opportunity to tell me what was wrong with each one. The class came alive at this point. The students were energized at the chance to criticize actual lawyers' work. (64) They noted all of the problems I hoped they would, plus some that I did not catch. Best of all, they were able to see the effect writing has when it is poorly organized, grammatically incorrect, and lack luster. The class agreed that the writing seemed rushed and not well planned out. This provided an opportunity to discuss why this might happen and how they could prevent this in their own writing now and once they became barred. Beyond simply teaching point headings, this exercise allowed me, through the use of the weak briefs, to probe professional responsibility, and through the use of the strong briefs, model positive professional ideals in writing.

The following year, I used practitioners' briefs to teach students how to write the summary of argument section in a complex First Amendment case. The students' assignment was to write appellate briefs addressing whether the lower court erred in determining that there was no First Amendment violation when a public school forbid discussion of animal experimentation on school premises. The analysis required a three-step process which the students struggled to grasp throughout the semester.(65) In order to help them, I suggested that they look to secondary sources such as law review articles. (66) After doing so, they began to get a better grasp of the depth of their analysis, but some of my students began to panic over the summary of argument section. Their concerns were two-fold: one, how could they boil the analysis down and still make it comprehensible; and two, how could they manage to do so in the allotted pages. (67)

In order to help them understand what the summary of argument section actually is, and the function it performs, I downloaded the briefs filed in Bethel School District No. 403 v. Fraser, (68) a pivotal First Amendment case they needed to understand for their own analysis. I provided my students with just the summary of argument sections filed by the Petitioners and the Respondents. I chose to use Bethel because the summary of argument sections filed were very different from one another; yet both were compelling. The Petitioner's Summary of Argument contained eleven paragraphs and was logically organized in accordance to the Questions Presented. (69) The Respondent's Summary of Argument section was five paragraphs and driven by emotion. (70) These briefs gave my students the opportunity to witness how two different writing approaches can be equally gripping. (71) It also gave them a chance to see that summary of argument sections can and are brief, even in landmark cases. The students really appreciated the opportunity to view how lawyers faced similar challenges in practice and overcame those challenges. (72)

I have varied the sections and uses of practitioners' briefs in the classroom each year. Their use depends on my students' needs, the assignment I am using, and the briefs I obtain. For example, when I was originally gathering the trial briefs I used in the Utah suppression of evidence assignment, my thought was to again use the statement of facts sections to teach persuasive writing techniques. When I obtained the trial briefs, it became obvious that this plan would not work because the facts were not written in a way that particularly demonstrated story telling or persuasion. However, because I found the use of the practitioners' briefs to be so engaging to students, I decided to find a new use for these briefs as strong and weak examples of point headings. Surprisingly, it was the weaker point headings that proved to be the most effective in teaching persuasive writing.

When I taught the First Amendment problem, I initially thought I might need to use excerpts of the practitioners' briefs to teach analysis. I discovered, however, that due to the inimitable nature of First Amendment law, it would be difficult to obtain briefs that would be helpful to my students' understanding of analysis. Instead, I directed my students to secondary sources to accomplish that task, and used practitioners' briefs to solve a problem that was an offshoot of struggling with analysis: writing an effective summary of argument section. The use of a very famous case enabled my students to see that even the most complex analytical structure can be effectively summarized.

Each of these exercises worked successfully only because of the varying degree of quality each brief exhibited. In order to teach students how to write effective point headings, stronger writing samples would not have worked as well. This is because the students would not have been as engaged in this particular learning process. Weaker writing samples, however, would not have worked in teaching my students how to write a compelling summary of argument section. When they were already struggling with First Amendment law, using a weakly written argument would have only frustrated the students more. Being flexible in the uses of practitioners' briefs is fundamental to using them effectively.

IV. GOING BEYOND THE LEGAL WRITING CLASSROOM: USING PRACTITIONERS' BRIEFS TO TEACH ANALYSIS IN CASEBOOK CLASSES

Uses for practitioners' briefs transcend the legal writing classroom into casebook classes. Traditionally, students read appellate decisions in their other courses to learn the law without ever considering how the cases were decided. Students are never asked to examine the records that were before the courts. They are never asked to read any of the memos or briefs the court itself depended on in delivering a case opinion. Rather, snippets of cases are provided for students to digest in casebooks without mention of the documents attorneys filed and the documents court reviewed in rendering those opinions. Unfortunately, this process does not take advantage of the opportunity to illuminate lessons on what Roy Stuckey terms the "nature and processes of lawyering and judging." (73)

In Best Practices for Legal Education, Stuckey suggests that professors "use variations on the Socratic dialogue and casebook method" (74) to "produce more engaging and educationally effective classes." (75) Professors should engage students by "causing them to imagine themselves in significant professional roles." (76) Stuckey suggests that although there are obstacles to overcome in accomplishing this goal, such as lack of time and ready-made materials, (77) using variations on the Socratic method to incorporate ideals of "the roles of lawyers and the broader intellectual world of law" (78) is a worthwhile endeavor.

Using practitioners' briefs in casebook classes is one way professors can reach that goal. Before assigning a case to read, professors could access the appellate briefs flied in that case and have the students read the briefs and then deliver their own decision and reasoning, either in writing, or simply in classroom discussion. (79) For example, before having students read Terry v. Ohio, (80) in a Criminal Procedure or Constitutional Law course, the professor could distribute the appellate briefs filed on behalf of the state and on behalf of John Terry to the students. During class, the professor could split the students into small groups to discuss what they believe would be the best outcome, or the professor could assign opposing sides to the students and have them present oral arguments before a mock bench. (81) After the class discussion, the professor could assign Terry v. Ohio as a reading. (82) This could lead to a discussion not only on the law and legal reasoning, but also on societal differences that would influence a decision in 2009, as opposed to 1968. (83)

This exercise would "stretch the perimeter of the traditional case-dialogue method by integrating additional disciplinary, professional, and social perspectives into traditional intellectual tasks." (84) It would also engage the students in active learning by requiring dialogue among the small groups. The exercise would help to develop the students' ability to think like lawyers by having them consider arguments and counterarguments before knowing the case's outcome. This would bring about activist thinking instead of the backward reconstruction of arguments that is often done when cases are read and hypotheticals spun during class. Engaging students in forward-thinking analysis would help to connect them to the lawyering process in a realistic manner. In so doing, it would help students learn to employ more sophisticated legal analysis by articulating arguments, reasoning, and decisions. By providing practitioners' briefs and having students act as lawyers and judges, professors engage students in thinking explicitly about the lawyer's role before an appellate court and the judge's process in making decisions.

V. CONCLUSION

Successfully adding practitioners' briefs to any law school course requires professors to be mindful of the potential pitfalls brought about from introducing new material in a classroom. Without a doubt, it requires professors to do a considerable amount of advance planning. First, professors need to decide their goal for the class. If it is simply to cover as much material as possible, it is doubtful that practitioners' briefs would be helpful. If, however, the goal involves furthering the teaching of legal process and reasoning, professors could gain a lot by using practitioners' briefs. Professors need to carve out time when making lesson plans to acquire the briefs from the courts, and then review those briefs to choose the ones that will best accomplish their goal. Although this is time consuming, it is well worth the benefits that can be achieved in class.

A second potential trouble-spot in using practitioners' briefs is the fear that students will come to believe that there are ready made templates for their use. The concern here is that these briefs will hinder the students' development of independent thinking and analysis, and in fact, might lead to cheating. This concern is certainly legitimate, but not dispositive on the issue of whether practitioners' briefs have a place in the classroom. Although some students may wish for ready-made templates, they rarely, if ever, exist in the practice of law. Almost every case on appeal is unique, and although the law may be similar, certainly the facts of each case are different. Different facts, of course, demand different analysis. Students will not be able to adopt a cut and paste approach to analysis because the law does not allow for it. (85)

A final concern is that students will be exposed to poor legal writing because practitioners' briefs are not written to be used in legal education, thus weakening the examples that students are exposed to while in school. This problem can easily be avoided by carefully choosing the practitioners' briefs, or portions of the briefs, that will be used in the classroom. This is similar to how case opinions are used in educating law students. Case opinions too, are not written for legal education and are often edited before being included in a law school textbook.

Students' education is enriched when they have the chance to examine documents used by lawyers and by courts. Although professors should be mindful of possible problems when introducing practitioners' briefs to students, there is no need to conceal the existence of these briefs. The briefs provide an excellent teaching tool when they are used for specific purposes. Briefs can be used judiciously to teach persuasive writing in legal writing courses or to teach reasoning and legal process in casebook courses. The mix of theory and practice that using practitioners' briefs provides to students strengthens their ability to understand, and hopefully one day to practice, the law.

ANNA P. HEMINGWAY (1)

(1.) Interim Director of the Legal Methods Program and Legal Methods Professor, Widener University School of Law-Harrisburg. I would like to thank Professor Kathy Jones, Professor Palmer Lockard, and Mr. Peri Fluger, my wonderful research assistant, for their help.

(2.) See Pamela Lysaght, Writing Across the Law School Curriculum In Practice: Considerations for Casebook Faculty, 12 J. LEGAL WRITING INST. 191, 192 (2006).

(3.) See Michael R. Smith, Alternative Substantive Approaches to Advanced Legal Writing Courses, 54 J. LEGAL EDUC. 119, 123 (1988) (describing the usefulness of court documents, such as trial briefs and appellate briefs, in legal writing courses).

(4.) See Anne Enquist, Critiquing and Evaluating Law Students" Writing: Advice From Thirty-Five Experts, 22 SEATTLE U. L. REV. 1119, 1141 (1999) (explaining the primary teaching tools for legal research and writing classes are the class textbook, class discussion, writing conferences, and comments made on students' papers).

(5.) See Lysaght, supra note 2, at 194; see also James Jay Brown, Forging an Analytical Mind. The Law School Classroom Experience, 29 STETSON L. REV. 1135, 1140-42 (2000) (discussing books and materials, particularly cases, included in law school curriculum).

(6.) See John O. Sonsteng et al., A Legal Renaissance: A Practical Approach for the Twenty-First Century, 34 WM. MITCHELL L. REV. 303, 342-43 (2007) for a discussion of Judge Jerome Frank's criticism of legal education in the United States as being restricted to a study of upper court opinions.

(7.) See Dennis R. Honabach, Epilogue: And Now What?: An Essay Contemplating a Course for the Second Century of the Washburn University School of Law, 42 WASHBURN L.J. 947, 950 (2004). "The second thing we professors do is teach law students 'to think like a lawyer.' By that catch (and ungrammatical) phrase, we mean that we help our students acquire basic lawyering skills, such as critical thinking, problem solving, persuasive writing, and legal research." Id.

(8.) See Jill J. Ramsfield, Legal Writing in the Twenty-First Century: The First Images, 1 J. LEGAL WRITING INST. 123, 128-29 (1991), available at http://www.law2.byu.edu/law_library/jlwi/archives/1991_l.htm (reporting that legal writing courses typically include the legal memorandum, pre-trial briefs, drafting documents, and the appellate brief).

(9.) See Enquist, supra note 4, at 1141.

(10.) See Claire Germain et al., Internet for Legal Information, 24 INT'L J. LEGAL INFO. 310, 315 (1996); see also Michael Whiteman, Features--Free and Fee Based Appellate Court Briefs Online (Sept. 18, 2005), http://www.llrx.com/features/briefsonline.htm (compiling links to free and free based appellate court briefs available on the Internet).

(11.) See Marie Stefanini Newman, Not the Evil TWEN. How Online Course Management Software Supports Non-Linear Learning in Law Schools, 5 J. HIGH TECH. L. 183, 183 (2005).

(12.) See Suzanne Ehrenberg, Legal Writing Unplugged: Evaluating the Role of Computer Technology in Legal Writing Pedagogy, 4 J. LEGAL WRITING INST. 1, 6--8 (1998), available at http://www.law2.byu.edu/law_library/jlwi/archives/1998_1.htm (discussing Westlaw and LexisNexis, legal databases that are now available to students at no charge); see also Laura Justiss, A Survey of Fee-Based Web Subscriptions in Academic Law Libraries, 95 LAW LIBR. J. 383, 383-85, 389 (2003) (ranking the use of Westlaw, LexisNexis, HeinOnline, LegalTrac, and Loislaw by law students).

(13.) See Germain, supra note 10, at 315.

(14.) See Michael Whiteman, Appellate Court Briefs on the Web." Electronic Dynamos or Legal Quagmire?, 97 LAW LIBR. J. 467, 476 (2005). "By placing briefs online, courts and their partners are allowing for the wider distribution of these documents to attorneys, scholars, and laypeople. In doing so, it could be argued that these valuable research tools can then play a greater role in 'our system of jurisprudence.'" Id.

(15.) See Matthew C. Cordon, Beyond Mere Competency. Advanced Legal Research in a Practice-Oriented Curriculum, 55 BAYLOR L. REV. 1, 8 (2003); see also AMERICAN BAR ASSOCIATION, REPORT ON THE TASK FORCE ON LAW SCHOOLS AND THE PROFESSION: NARROWING THE GAP (July 1992), http://www.abanet.org/legaled/ publications/onlinepubs/maccrate.html [hereinafter MACCRATE REPORT]. "Possessing advanced legal research skills should enable an attorney to find the law and perform research tasks at a more effective level than someone possessing merely 'competent' skills." Matthew C. Cordon, Beyond Mere Competency." Advanced Legal Research in a PracticeOriented Curriculum, 55 BAYLOR L. REV. 1, 8 (2003); see also MACCRATE REPORT available at http://www.abanet.org/legaled/publications/onlinepubs/maccrate.html.

(16.) See, e.g., Whiteman, supra note 10, at 1.

(17.) See infra Part II.

(18.) See infra p. 420 and note 23.

(19.) See infra Part III.

(20.) See infra Part III.

(21.) See infra Part IV.

(22.) See infra pp. 433-34 and accompanying notes.

(23.) See, e.g., Cara Cunningham & Michelle Streicher, The Methodology of Persuasion: A Process-Based Approach to Persuasive Writing, 13 J. LEGAL WRITING INS. 159, 161 (2007).

(24.) See id. (exploring the process of teaching persuasive writing to law students).

(25.) See id. It has been my experience that to help students learn to write objectively, professors will sometimes require students to write closed or open memos without disclosing their client. Although this approach is unrealistic, it does help students appreciate that in objective writing, the client's most favorable outcome becomes secondary. A more realistic approach to teaching objective writing is to place students in the role of judicial clerks where they are required to write objective memos for judges.

(26.) See Judith B. Tracy, "I See and I Remember; I Do and Understand" Teaching Fundamental Structure in Legal Writing Through the Use of Samples, 21 TOURO L. REV. 297, 331 (2005). "[S]tudents may also be intimidated or uncertain about making the transition from the objective to the persuasive format, even though they have had valuable experience objectively analyzing legal issues and are likely ready to try presenting that analysis persuasively." Id.

(27.) See ASSOCIATION OF LEGAL WRITING DIRECTORS, LEGAL WRITING INSTITUTE, 2008 SURVEY RESULTS, http://www.alwd.org/surveys/survey_results/2008_Survey_Results.pdf. The 2008 ALWD/LWI survey reported that in 2008, 54 schools required students to write trial briefs and 137 schools required students to write appellate briefs. See id

(28.) See Cunningham & Streicher, supra note 23, at 161. The article refers to this approach as "learning by example." Id.

(29.) See id.

(30.) See id.

(31.) See id.; see generally Steven Lubet, Advocacy Education: The Case for Structural Knowledge, 66 NOTRE DAME L. REV. 721, 734-35 (1991) (discussing use of method in teaching advocacy).

(32.) See Cunningham & Streicher, supra note 23, at 161.

(33.) See id.

(34.) See Sarah E. Ricks & Jane L. Istvan, Effective Brief Writing Despite High Volume Practice: Ten Misconceptions That Result in Bad Briefs, 38 U. TOL. L. REV. 1113, 1114 (2007).

(35.) See id.

(36.) See Laurel C. Oates, I Know I Taught Them How To Do That, 7 J. LEGAL WRITING INST. 1, 8 (2001).

(37.) See ROY STUCKEY, BEST PRACTICES FOR LEGAL EDUCATION 123 (Clinical Legal Education Association 2007). As Roy Stuckey notes, "[s]tudents learn better when they are interested in what the teacher wants them to learn." Id. Additionally, "students are more receptive to understanding and applying structure in legal writing if they can see for themselves why it is needed." Tracy, supra note 26, at 317-18.

(38.) See Eileen A. Scallen, Evidence Law as Pragmatic Legal Rhetoric: Reconnecting Legal Scholarship, Teaching and Ethics, 21 QUINNIPIAC L. REV. 813, 865 (2003).

(39.) See ANDREW J. MCCLURG, 1L OF A RIDE 315-18 (2009).

(40.) Cf. id. at 317.

(41.) Cf. STUCKEY, supra note 37, at 186. For example, when other material is used, the skill of transference can be practiced by students. Id. It gives them the chance to take information from one set of materials and apply it to a new fact pattern. Id.

(42.) See Joshua D. Rosenberg, Teaching Values in Law School: Teaching Empathy in Law School, 36 U.S.F.L. REV. 621, 630 (2002). "Inevitably, competition for the best jobs will lead to competition for the best grades." Id. Learning, however, is of course the most important goal. See id.

(43.) See George D. Gopen, The Professor and the Professionals: Teaching Writing to Lawyers and Judges, 1 J. LEGAL WRITING INST. 79, 79 (1991).

(44.) See id. These demands include time management and billing pressure felt by many attorneys. See id. at 80.

(45.) See id.

(46.) See id. at 79.

(47.) See Maureen Archer, Sidelined on the Judicial Bench: Sports Metaphors in Judicial Opinions, 35 AM. BUS. L.J. 225, 226 (1998).

(48.) STUCKEY, supra note 37, at 72 (quoting WILLIAM M. SULLIVAN ET AL., EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW 98 (2007)).

(49.) Id. at 97.

(50.) See id. Many legal academics have strived to distance themselves from practice in order to gain so called respectability within academia. See id.

(51.) See id. at 98. In fact, Stuckey argues the teaching of both helps students to learn substantive law and legal reasoning skills. See id.

(52.) See Jill J. Ramsfield, Is "Logic" Culturally Based? A Contrastive, International Approach to the U.S. Law Classroom, 47 J. LEGAL EDUC. 157, 166 (1997).

(53.) See WILLIAM M. SULLIVAN ET AL., EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW 12 (2007).

(54.) See Special Committee on Race and Ethnicity, Report of the Special Committee on Race and Ethnicity to the D.C. Circuit Task Force on Gender, Race, and Ethnic Bias, 64 GEO. WASH. L. REV. 189, 223 (1996).

(55.) Not much at all is my standard response to this inquiry.

(56.) Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993).

(57.) See id. at 371.

(58.) See Brief for Petitioner, Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) (No. 92-1168), 1993 WL 302216; Brief for Respondent, Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) (No. 92-1168), 1993 WL 302223.

(59.) See Brief for Petitioner, Harris, 510 U.S. 17 (No. 92-1168); Brief for Respondent, Harris, 510 U.S. 17 (No. 92-1168).

(60.) That year the answers to these questions were I have my ways and no. I was nervous about exposing these questions to my students because they are not thought of us traditional teaching tools. If I were to answer those questions today, I would tell my students where to find them, but I might continue to limit their use of these briefs.

(61.) UTAH R. EVID. 404.

(62.) Id. at 402-03.

(63.) I am intentionally excluding case names in this example because I have been critical of the writers of some of the briefs.

(64.) See generally Carol McCrehan Parker, Writing Throughout the Curriculum: Why Law Schools Need It and How to Achieve It, 76 NEB. L. REV. 561, 583-84 (1997).

(65.) See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271-73 (1988). First Amendment law, at the time, required the students to analyze: (1) whether the speech was school sponsored; (2) whether school censorship of the speech reasonably related to a legitimate pedagogical concern; and (3) whether a reasonable trier of fact could have found that the students' speech created a material and substantial disruption. Id.

(66.) Students were pointed towards Marc Rohr, How Free is the Speech of Public School Students?, 74 FLA. B.J. 79 (2000); and Kevin Francis O'Neill, A First Amendment Compass." Navigating the Speech Clause with a Five-step Analytical Framework, 29 SW. U. L. REV. 223 (2000).

(67.) The assignment was subject to a twenty page limit, with no more than fourteen pages for the Argument section.

(68.) 478 U.S. 675 (1986).

(69.) See Brief of Petitioners at 6-10, Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) (No. 84-1667), 1984 WL 565918.

(70.) See Brief of Respondents at 6-8, Fraser, 478 U.S. 675 (No. 84-1667).

(71.) Some may argue that because the Supreme Court ultimately ruled in favor of Bethel School District No. 403, the Petitioner's brief was more compelling. See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986). I disagree. Both Summary of Argument sections effectively argued on behalf of their clients. However, the Court, at the time, was engaged in narrowing its decision from Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). See Fraser, 478 U.S. at 680, 685-86; see also Hazelwood, 484 U.S. at 270-71.

(72.) See Briefs from Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969); Hazelwood Sch. Dist. V. Kuhlmeier, 484 U.S. 260 (1988) would have also worked well. See Brief for Petitioners, Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) (No. 21), 1968 WL 94383; Brief for Respondents, Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) (No. 21), 1968 WL 94384; Brief for Petitioners at 12-13, Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988) (No. 86--836), 1987 WL 864172; Brief for Respondents at 4-5, Hazelwood Sch. Dist v. Kuhlmeier, 484 U.S. 260 (1988) (No. 86--836), 1987 WL 864173.

(73.) STUCKEY, supra note 37, at 160. One of the principles for best practices for non-experiential teaching methods is for the teacher to "draw from the discussion lessons about the nature and processes of lawyering and judging." Id.

(74.) Id. at 165.

(75.) Id. at 223.

(76.) Id. at 224 (quoting Judith Wegner, Theory, Practice, and the Course of Study--The Problem of the Elephant 34 (Draft 2003) (unpublished manuscript on file with Roy Stuckey)).

(77.) Id.

(78.) Id. (quoting Judith Wegner, Theory, Practice, and the Course of Study--The Problem of the Elephant 45 (Draft 2003) (unpublished manuscript on file with Roy Stuckey)).

(79.) A slightly different twist on this exercise is to assign students to read appellate briefs filed in significant pending U.S. Supreme Court cases. For example, before Kelo v. City of New London, was decided in 2005, property professors could have obtained the appellate briefs and had students review them, and, if timing allowed, had the students then read the U.S. Supreme Court opinion when issued. See Kelo v. City of New London, 545 U.S. 469 (2005). I would like to thank Professor Benjamin Barros for this teaching idea.

(80.) 392 U.S. 1 (1968). Terry v. Ohio is a renowned stop and frisk case. See id.; Charles S. Bobis, Foreword, 72 ST. JOHN'S L. REV. 721 (1998). I have chosen this case as an example because volume 72 of St. John's Law Review has devoted a symposium issue to Terry. See Bobis, supra note 80, at 721. In this volume, professors can find additional materials such as trial transcripts and notes written by U.S. Supreme Court Justices in reaching a decision. See John Q. Barrett, Deciding the Stop and Frisk Cases: A Look Inside the Supreme Court's Conference, 72 ST. JOHN'S L. REV. 749, app. at 845-90 (Three Justices' Notes of the U.S. Supreme Court Conferences on the stop and frisk cases). I would like to thank Professor Wesley Oliver for suggesting that I use Terry as an example.

(81.) In this exercise, some students would represent the state, some Terry, and others would serve as the court.

(82.) A variation of this exercise can also be used in the Legal Methods classroom. If a closed memo assignment is based on a decided case, after the students have completed their closed memos, that case could be distributed and discussed in class. The professor could review with the class how the reasoning and conclusions drawn by students differed or concurred with the actual opinion and review why.

(83.) See Terry, 392 U.S. at 1.

(84.) STUCKEY, supra note 37, at 224 (quoting Judith Wegner, Theory, Practice, and the Course of Study--The Problem of the Elephant 34 (Draft 2003) (unpublished manuscript, on file with Roy Stuckey)).

(85.) This is not true if professors are using cases currently before a court as their trial or appellate brief assignments. When this happens, practitioners' briefs could negatively impact the educational process.
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Author:Hemingway, Anna P.
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Date:Mar 22, 2010
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