Legal Commentary

The first thing that any LRW class should do is state its goals upfront.  And, as I suggested in previous posts, the goal should be more than ?to teach you how to write stuff that lawyers write and to research the law.?  Rather, the goal should be something like, ?to teach you how to act like a lawyer and to use the law the way that lawyers do to resolve real-life problems.?

It isn?t enough just to say this, because these words have no meaning to a novice.  I think it is necessary to make explicit from the start to students that the law is not some object or force out there that solves problems on its own.  The famous cases don?t get to the Supreme Court by themselves, and judges at any level don?t write on a blank slate?they write based on what lawyers write.  Admittedly, these are obvious points, but I do not think that traditional doctrinal teaching conveys this at all.  Indeed, I think that the case method tends to undermine this message.

From there, an LRW class could cover the following elements--at least introduce students to them; and instructors should show students how each relates to the primary goal of the course:

• Turning messy real-life problems into legal problems;
• Communicating with the client, supervising attorney, and opposing counsel;
• Choosing and using appropriate legal research resources and strategies for every stage of a project;
• Synthesizing Cases;
• Writing in different genres, including genres that don?t arise in the context of litigation (because many, if not most, lawyers will rarely litigate a case);
• Recognizing good and bad legal writing, which includes showing them legal writing other than appellate judicial opinions;
• Professionalism.

One commenter to an earlier post argued that LRW is really just an opportunity for students to practice legal reasoning and to put it in writing.  Obviously, I thinks that's too narrow a goal for an LRW program; and it does not take much class time to include some of the other elements that I have suggested.  Here are some examples.

Rather than start with a clear law-based fact pattern, why not start with a story about a client who had something bad happen to him/her?  And why not ask the students whether they have any intuitions about whether there is a lawsuit there.  Does it sound like a tort?  A crime?  A violation of constitutional rights?  Even students at the very beginning of their legal education have intuitions that move in the right direction--which is part of the point, i.e. that law often tracks what you think the "right" answer is.  And this--turning real life problems into legal issues--is what lawyers do in the real world.  (To a degree, this also tracks at least one style of lawschool exams.) 

Students should also learn how to sharpen that intuition and find a legal claim.  Secondary sources, such as treatises, are a great place to start.  Brainstorm some search terms.  Use the computer and the index to a hardcopy to get the basic contours of the claim.  Once again, this is what lawyers (particularly junior lawyers) do.  Then give them a case that's on point and ask them to reason from it.  Only then have them write their first memo.

It is also worth discussing alternatives to lawsuits.  Many students will want to immediately go to court to serve their client.  But can the client's interests be better served with a phone call to the other side?  With a letter to a state agency?  This necessitates a discussion comparing the client's interests (what s/he wants) with what a lawsuit can offer.  These are points worth returning to throughout the program.  For example, if the memo the students write concludes that the legal issue is a close call, then what should they tell their client about filing the lawsuit, given costs and competing interests?

There surely are other elements to a good LRW course.  I mean only to suggest that the "R" and "W" are not the only important parts of the program.  The point is that all of these are things that young lawyers need to understand, but often don?t get from the traditional law teaching methods in doctrinal class.

Next week, I'll address who should teach LRW, IRACing, teaching legal research, and bringing the principles of LRW into the doctrinal classroom.  I'll likely finish the series by responding to some of your comments and by offering some reflections on doing an LRW teaching fellowship on the way to getting a tenure-track doctrinal teaching gig.