For those of you who attended the elite law schools or read Above the Law regularly, you probably already know this. For me, this came as a shock. Did you know that students at Yale and Penn law schools are taught legal writing by third year law students?
Rick Garnett at PrawfsBlawg let the cat out of the bag in his effort to dispute Jason Solomon’s point that this is a major failing for those schools in the USN&WR rankings. Since I don’t give a hoot about the rankings, I didn’t pay attention. Here’s the deal:
Over at MoneyLaw, Jason Solomon writes that the fact the first-year legal-writing program at Penn (as at Yale) is taught by 3-L’s “prevents Penn from having an ‘outstanding’ JD program”. Why should this be true? He elaborates:
So Penn, it’s time to spend some money on real legal writing professors. The people who head Penn and Yale’s programs may be terrific, but there’s only so much one person can do. The law student instructors may be doing a good job given what they know, but… they’re law students.
They will have a tenured professor, sitting in a chair with somebody’s name on it, teaching Law and Post-Impressionist Painting, but they can’t be bothered having someone with any actual experience, any hands-on capability, teaching law students how to write? Are they nuts?
Rick questions whether this is really a big deal, big enough to be worthy of a ranking problem for these schools. Bear in mind that lawprofs and law schools live and die on these rankings, as if the education obtained is affected rather than just cash-flow. Rick asks a litany of questions to challenge the assumptions that 3L students can’t be as good teaching legal writing as “real professors.” The phrase “the blind leading the blind” comes to mind.
As with all attempts to justify bad concepts via absolutism, there are probably some 3L students who can do a minimally acceptable job passing along whatever they learned to be legal writing to the next generation. But this completely misses the point of both legal writing and law school. The best they could hope for is an accurate mechanical transmission of what these kids are told is legal writing. They don’t know legal writing because they’ve never done legal writing.
If Rick thinks that it’s that mechanical to write successfully as a lawyer, then he needs to get back to the trenches. Good legal writing is hard. Successful legal writing is very hard. Most lawyers can’t do it well. Why would one take the huge risk that a third year law student who has zero experience with bad legal writing can teach others to be competent at it?
But the bigger picture is that legal writing is one of the few skills that budding lawyers need. The ability to write for legal purposes is basic; it’s what lawyers are expected to do. Whether it’s a Biglaw partner or a client, the day that kid becomes a lawyer and has to write something, he’s expected to be able to do it. This is one of, if not the, primary skills one needs to practice law. And you’re sending him away from law school without it?
Jim Chen at MoneyLaw (edit: via Larry Rosenthal) has recapped the points:
- Legal writing is an awfully important skill. It is probably the only skill that employers will expect recent graduates to have . . . .
- Successful legal writing is a difficult skill to learn. I spent many years supervising young lawyers in a rather sophisticated appellate practice. Rarely did a recent graduate display much competence until after at least a year of work. . . .
- It is extremely unlikely that someone who cannot write well will be [a] successful teacher of legal writing. Yet, substantial experience is generally a necessary if not sufficient condition for being able to write well. . . .
- The typical 3L has very little writing experience — the 1L [legal research and writing] curriculum, maybe a law review note, and a few memos produced at a summer job that probably were not very good.
- A law school that hires individuals with enough experience to have a high level of briefwriting skills and the ability to teach them will confer on its students a substantial advantage in the job market.
That last point, it bears remembering, goes to the heart of why law students burn a thousand days and often incur more than $100,000 in undischargeable debt: to get jobs.
For crying out loud, teach the students how to write. Give them something useful for their money. And put the rest of us out of our misery trying to clean up the crap they produce.
And let me add one thing to Jim’s list. Maybe law schools ought to be awfully careful even when they have lawprofs teach legal writing. Maybe, just maybe, some of them lack the “substantial experience” in the trenches that distinguishes a “successful” teacher of legal writing from a teacher of what an academic thinks is good legal writing? There can be a difference. Just think about it.