We would not expect someone to learn how to ride a bike merely by watching someone else ride one. Many law schools, however, seem to accept the notion that students can learn how to practice law without spending significant time engaged in legal work. Indeed, law students often do not even have the benefit of regularly observing law­yers at work or reviewing the documents they prepare, and instead spend considerable time reading appellate opinions.
The demand for law schools to produce "practice-ready" attorneys seemed to peak a few years back when articles abounded about the perceived gap between what students are taught in law school and what lawyers actually do in practice. The changing legal market has resulted in reduced opportunities for graduates to learn on the job, with legal employers now demanding that graduates begin practice needing less training and supervision. To meet these demands, some law schools have made dramatic changes to their curriculums, affording students more opportunities to develop skills and engage in real practice; others have largely maintained the status quo. While resistance to change accounts for some of the present inertia, economic realities and competing priorities have also slowed progress. Indeed, the often costly demand for more practice opportunities comes at a time when many law schools are facing economic challenges as a result of declining applications that have followed persistent graduate unemployment.
While legal scholars have suggested various and often drastic curricular reforms, the simpler, less costly solution of affording students more opportunities to engage in practical legal writing largely has been overlooked. Classroom instruction in law still takes place primarily in the abstract, with students reading about and discussing the application of law to facts, while not routinely engaging in such application themselves. Indeed, in the doctrinal classroom, brief practical hypotheticals proposed by a professor to a student sometimes present the only regular opportunity for students to move beyond this largely passive exercise to consider how an existing rule of law might affect a future legal problem.
Law students spend far less time engaged in active learning exercises that involve more complex problem-solving, such as legal writing assignments. Indeed, many law students can graduate from law school after participating in practical legal writing activities during only their first year. The American Bar Association Section of Legal Education and Admission to the Bar requires that each law student satisfactorily complete "one faculty supervised, rigorous writing experience in the first year and at least one additional rigorous writing experience after the first year." Many law schools allow (or require) students to fulfill their upper-level writing requirement with scholarly legal writing. Although some students may benefit from additional practical legal writing in advanced courses, clinics, internships or externships, many law schools do not require it. Moreover, while the ABA standard is a step forward, it is misleading to suggest that two isolated writing experiences during law school suffice to prepare students for real legal practice.
Engaging in legal writing has many learning benefits. The act of writing affords the writer an opportunity to think through a legal problem, engage deeply with the law and facts, and expand her knowledge of the law and practice. By analyzing legal problems and developing her ideas through the writing process, a student better understands the substantive law and procedure relevant to an assignment. In discussions with the professor on writing assignments and from feedback received, a student learns to make professional decisions and gains confidence about the prospect of practicing law. Work on writing assignments offers a student an opportunity to apply her knowledge of the law in a practical context, with the benefit of expert guidance.
When experienced practitioners reflect on their own careers, many will note that much of their expertise grew not by reading cases or legal documents in the abstract, but by applying legal principles to discrete issues while working on a legal matter. Indeed, many will think back to a particular client’s case, or even a specific legal document that they prepared. Good legal writing requires a lawyer not only to know the relevant law but to understand her role as a lawyer, and the audience and purpose for which she is writing. The writer must carefully consider not only the decision to be made, but how the legal reader will make that decision and what will matter to the reader in the decision-making process. All of these factors inform the development of an effective and helpful legal document, and require the writer to make professional judgments, as well as strategic decisions, during the writing process.
Even though many practitioners share these positive legal writing experiences, a disconnect exists between the vast potential for learning from writing and the limited role of practical legal writing in legal education. It is often seen through a narrow lens as an isolated skill to be learned in designated courses. Yet writing can provide a wealth of learning opportunities, the benefits of which can be realized by the student throughout law school and later in practice. As law schools ponder how they might better prepare students to meet the increasing demands of legal practice, they need to go back to basics and consider the greater role that practical legal writing should play in building practice competence.
Sherri Lee Keene is the associate director of legal writing at the University of Maryland Francis King Carey School of Law.