Oregon State Bar Bulletin OCTOBER 2015
The Legal Writer
Ready to Write:
Transferring Writing Skills from Law School to Law Practice
By Megan McAlpin
Have you ever told a law student or a brand new lawyer that nothing in law school would prepare her for the practice of law? It seems like a fitting, welcoming thing to say.
You mean, “Welcome. We’re glad you’re here. The law is such an important profession that nothing could prepare you for the sheer size and scope of the job you are about to do. Nothing could prepare you for the tough situations and human problems you are about to face. You have so much to learn, and our community of experienced attorneys is here to help you.”
The problem is that that new lawyer might have heard something very different. She might have heard, “Put all of that nonsense behind you. Remember that legal research and writing professor you had who insisted that you explain the law before you apply it? Forget that. Real lawyering is so much more ‘go with the flow.’ And remember that professor who demanded careful legal analysis? That was just mean. In the real world, we really just like to get your impression of the law. Just kind of give me a sense of what you think. And don’t worry about proofreading. I’m happy to do that for you.”
That new lawyer may breathe a sigh of relief that she can put school behind her. But a week later, you may be scratching your head at the drafts she produces. You may wonder, are law schools teaching nothing these days?
Writing Is Writing Is Writing. Isn’t It?
You might think that law school has failed and the new lawyer you’re working with has not learned the basics of legal analysis and writing. In reality, though, it may just be that that new lawyer is having a hard time transferring a skill that she learned in one context — law school — into a new context — law practice.
Transfer is, essentially, the term that learning theorists use to describe using information and skills that you learned in one context in another context. Sometimes, the two contexts are fairly similar (one law school class to another law school class), but other times the contexts can be pretty different (a law school class to the practice of law.) When a new lawyer has to take something she used in law school and use it in her law practice, she has to transfer that information or skill to an entirely different context. And that’s really hard.
Now stick with me here because even I’m rolling my eyes a little bit. Writing is writing is writing. Isn’t it? Shouldn’t we stop making excuses?
Well, no. Learning theorists who study transfer don’t quite agree on how exactly to define or measure transfer. What they do seem to agree on is that achieving transfer is really, really hard. And theorists have put forward a whole host of reasons that this is true. One reason that learners fail to transfer old information to new situations is that they don’t see the need for transfer. That’s where you come in.
Barriers to Transfer
If you tell that new lawyer that nothing in law school prepared her for the practice of law, you have essentially taken away any incentive that she has for transferring what she learned in law school into law practice. (If she isn’t bringing any relevant knowledge or skills from law school, then she doesn’t need to search her memory for something that she learned that could make the task you’ve given her more manageable.) Worse yet, you might have suggested that she shouldn’t use what she learned in law school.
At the risk of sounding a little defensive — but only because my entire life’s work is devoted to teaching students to do legal analysis and writing — she really did learn lots about legal analysis and predictive and persuasive writing that she could use in practice. She just has to know that she should use it.
Instead of telling that new lawyer that she didn’t really learn anything in law school, try pointing out the similarities between what she learned in law school and what she’s doing now. She will stand a much better chance of transferring the information and skills that she has to her work as a lawyer.
Promoting transfer is even more important if you’ve asked the new lawyer to do something that bears little resemblance to something that she has experience with. Take, for example, a memorandum in support of a motion for summary judgment. If you ask a new lawyer to write one, he is probably going to go back to his office and have a little panic attack because he’s never written one before in his life. What if, instead, you said, “I need you to write this memorandum in support of a motion for summary judgment. This is really very similar to the appellate brief that you wrote in your first year of law school. Let’s talk for a minute about the similarities and differences so that you can get started.”
With that one little change in approach, you will be triggering the new lawyer to think about everything he knows about writing to a court and organizing and writing a persuasive legal argument. He might even pull out his legal writing text and remind himself of the things he already knows. (Stranger things have happened.) I promise that the resulting draft will be much better.
With this one little change, you will actually be giving the student what learning theorists call a “retrieval cue.” Think about long-term memory as a filing cabinet; a retrieval cue suggests which file folder to look in. (Look in the “Legal Writing” file under persuasive writing techniques.)
This retrieval cue will help that new lawyer reach back into the filing cabinet to find the right information and skills. Then, hopefully, she’ll be able to use it effectively.
But I Don’t Know What She Knows
Now I can hear you saying: “But what do I say to this brand new lawyer? I don’t know what she knows or doesn’t know.” And I understand. But that won’t get you off the hook; you can give her retrieval cues just by asking her some questions.
Do you need her to write a letter to a client? Ask her if she’s written one before. If she says yes, you’ll have unlocked a cache of useful memories that she can transfer to the letter she’s about to write.
If she says no, ask her a few more questions about the kind of writing she has done. Has she written an email to a client? Has she written a letter in another professional environment? If so, explain briefly how a letter from your office will differ from an email, but encourage her to use what she remembers from her prior experience.
Maybe she’s written only office memos and an appellate brief. Help her see what in her experience is relevant (this client will really want to see a summary of your analysis) and what isn’t appropriate for a client letter (this client isn’t a lawyer and so won’t want an explanation of the law like you would write in a memo).
Let’s look at a different situation where transfer could help. Are you disappointed in the disorganized memo that your law clerk wrote? Ask him about the organizational paradigm that he used as a 1L. Did his writing professor insist on IRAC (Issue/Rule/Analysis/Conclusion)? [Sidebar: Don’t believe the answers to these questions, as students sometimes forget the details of our fabulously rich courses. No, that’s not fair. Believe the answers; but keep asking questions. No IRAC? Well how did he organize memos? Oh, what’s that? He used CREAC (Conclusion/Rule/Explanation/Analysis/Conclusion)? (Turns out IRAC and CREAC are the same thing; both require the writer to name the issue, explain the law, apply the law and conclude.)]
This sounds like such a little thing. But, honestly, if you don’t tell that young lawyer or law clerk that you want a memo written in IRAC (or CREAC or whatever you want to call it), it may never occur to her to write it using an organization that lawyers consider second nature. Really. It may surprise you, but transferring knowledge and skills from one context to another is truly difficult.
One bonus of asking new lawyers or law clerks about their relevant writing experience is that you can help guide them in making decisions about which information or skills to use and which information or skills aren’t relevant to the task you’ve assigned.
For instance, what if you just need a summary of the law? If you ask for a summary of the law, you may not get exactly what you want. If, on the other hand, you ask for that law clerk to really focus on the E in the CREAC, you might get a product that comes much closer to meeting your expectations.
It may be true that nothing in law school really prepares students for the practice of law. After all, being a lawyer is a tremendous undertaking. But it’s definitely not true that law school really taught them nothing. Help them see what they know. Help them use what they know by transferring it to this exciting new environment. It will likely make your job and theirs a whole lot easier.
Jeanne Ellis Ormrod, Human Learning (6th ed., Pearson Education, Inc., 2012).
ABOUT THE AUTHOR
Megan McAlpin teaches legal research and writing at the University of Oregon School of Law. You may contact her at firstname.lastname@example.org.
An archive of The Legal Writer articles is available here.
© 2015 Megan McAlpin