568
Writing Like a Lawyer: How Law
Student Involvement Affects Self-
Reported Gains in Writing Skills in
Law School
Kirsten M. Winek
I. Introduction
Complaints that new lawyers struggle with legal writing skills are not new.
Nearly thirty years ago, in 1992, the American Bar Association’s MacCrate
Report suggested law schools improve the writing curriculum because there
was “the widely held perception that new lawyers today are deficient in
writing skills.”
1
Later, in a 2003 article, the surveyed judges, attorneys, and
legal writing faculty agreed in large numbers (57.3%) that new lawyers have
difficulty with writing in practice.
2
In particular, respondents noted that new
lawyer writing was wordy, unfocused, incomplete, unclear, and disorganized.
3
It also suffered from a misunderstanding of the issues at hand and problems
with grammar and writing fundamentals.
4
Some of these observations were
echoed in a 2009 article whose authors surveyed lawyers, judges, and judicial
law clerks and found that they, too, noticed lawyers struggling to be organized
1. LegaL education and ProfessionaL deveLoPment—an educationaL continuum,
rePort of the task force on Law schooLs and the Profession: narrowing the gaP
332 (Am. Bar Ass’n Section of Legal Educ. & Admissions to the Bar ed., 1992) [hereinafter
MacCrate Report]. This was not the first time an ABA task force complained about legal
writing skills. In 1979, an ABA task force opined that “too few students receive rigorous
training and experience in legal writing during their three years of law study.” rePort and
recommendations of the task force on Lawyer comPetency: the roLe of the Law
schooLs 15 (Am. Bar Ass’n Section of Legal Educ. & Admissions to the Bar ed., 1979).
2. Susan Hanley Kosse & David T. ButleRitchie, How Judges, Practitioners, and Legal Writing Teachers
Assess the Writing Skills of New Law Graduates: A Comparative Study, 53 J. LegaL educ. 80, 86 (2003).
3. Id. at 87.
4. Id. at 87.
Kirsten Winek, J.D., Ph.D., is Accreditation Counsel at the American Bar Association (ABA)
Section of Legal Education and Admissions to the Bar. This article is based on dissertation
research for her Ph.D. in higher education. All views expressed are her own and not those of the
ABA. She wishes to thank Professors Eric Chaffee and Pamela Lysaght for their helpful comments
and feedback on this article.
Writing Like a Lawyer 569
and concise in their writing.
5
Focus groups with legal employers revealed that
they wanted new lawyers to advocate for a position and explain the strengths
and weaknesses of a client’s case in written work instead of merely reviewing
the law.
6
More recently, 47% of the litigation attorneys surveyed in a 2015 study
cited writing and drafting as the most deficient skills in new lawyers.
7
This
is especially notable given that 66% of these litigation attorneys considered
these skills crucial for new attorneys.
8
In particular, certain types of litigation
documents—trial briefs, motions, and pleadings—were cited as important
documents new lawyers write but lacked the skills to do so.
9
Even while in law school, some students perceive that their writing skills
may not be at the level needed for legal practice. In the Law School Survey
of Student Engagement’s (LSSSE) 2008 Annual Survey Results, nearly 40%
of the students surveyed wanted more writing opportunities that reflected the
work they would do in law practice.
10
An even higher percentage of students
(45%) opined that “their legal education does not contribute substantially
to their ability to apply legal writing skills in real-world situations.”
11
Furthermore, some law students working as summer associates in larger firms
surveyed in 2016 struggled with writing in the law firm setting, with 35%
feeling unprepared for at least one writing project.
12
Additionally, a number of
these summer associates thought more training in creating contracts (29.7%),
memos (28.8%), pleadings and motions (22.7%), and briefs (21.5%) would
have been helpful.
13
These complaints by legal professionals and student concerns are alarming,
as writing is especially critical at the start of a new lawyer’s career. Passing the
state bar exam is the first step to law practice, and, in most states, the written
5. Amy Vorenberg & Margaret Sova McCabe, Practice Writing: Responding to the Needs of the Bench
and Bar in First-Year Writing Programs, 2 Phoenix L. rev. 1, 9 (2009).
6. Susan C. Wawrose, What Do Legal Employers Want to See in New Graduates?: Using Focus Groups to
Find Out, 39 ohio n.u. L. rev. 505, 539–40 (2013).
7. White Paper: Hiring Partners Reveal New Attorney Readiness for Real World Practice, LexisNexis 7 (2015),
https://www.lexisnexis.com/documents/pdf/20150325064926_large.pdf [hereinafter
LexisNexis 2015].
8. Id. at 5.
9. Id. at 4.
10. 2008 Annual Survey Results: Student Engagement in Law School: Preparing 21st Century Lawyers, Law
School Survey of Student Engagement 10 (2008), https://lssse.indiana.edu/wp-content/
uploads/2016/01/LSSSE_Annual_Report_2008.pdf [hereinafter LSSSE 2008 Annual
Survey Results].
11. Id. at 10.
12. Summer Associates Identify Writing and Legal Research Skills Required on the Job,
LexisNexis 3 (2016), http://www.lexisnexis.com/documents/pdf/20161109032544_large.pdf
[hereinafter LexisNexis 2016].
13. Id.
570 Journal of Legal Education
portion of the exam usually comprises essay questions and/or performance
tests.
14
These written portions of the state bar exam are usually weighted at
half the total score or more.
15
This makes writing an important skill for success
on the bar exam. Furthermore, writing skills are important in obtaining a job
and working as a new attorney. Legal employers have expressed that good
writing and communication are highly relevant skills in new lawyers being
evaluated for jobs.
16
Once on the job, new lawyers learn that writing is essential
to their chosen profession. In a 2013 job analysis focusing on the work of new
lawyers, all respondents indicated they used written communication.
17
The
same respondents also thought written communication was important to their
work, rating it the highest on a list of thirty-six skills and abilities needed for
law practice.
18
In 2019, another job analysis revealed that writing continued to
be a critical skill for new attorneys, ranking third on a list of thirty-six skills
and abilities.
19
Because writing is essential to new lawyer success, this article recommends
law schools maintain their current first-year legal writing programs and
increase upper-level curricular opportunities to practice writing and
writing-related skills such as speaking, critical and analytical thinking, and
legal research. These recommendations are based on the author’s doctoral
dissertation research study, which sought to determine whether any law school
involvement activities affected student self-reported gains in writing skills in
full-time, third-year law students, using responses to the 2018 administration
of LSSSE.
20
LSSSE queries law students about their cocurricular activities,
interactions with peers and professors, class participation and coursework,
activities outside law school such as holding a job, satisfaction with various
aspects of law school, and perceptions of skills gains.
21
Specifically, this
14. Comprehensive Guide to Bar Admission Requirements 2020, National Conference of Bar Examiners
36–38 (Judith A. Gundersen & Claire J. Guback, eds., 2020), http://www.ncbex.org/
assets/BarAdmissionGuide/CompGuide2020_021820_Online_Final.pdf [hereinafter Bar
Admission Requirements 2020].
15. Id.
16. Neil W. Hamilton, Changing Markets Create Opportunities: Emphasizing the Competencies Legal Employers
Use in Hiring New Lawyers (Including Professional Formation/Professionalism), 65 s.c. L. rev. 547, 551–
58 (2014).
17. Susan M. Case, The NCBE Job Analysis: A Study of the Newly Licensed Lawyer, the Bar
examiner 52–53, 55, (Mar. 2013), https://thebarexaminer.org/wp-content/uploads/
PDFs/820113testingcolumn.pdf.
18. Id.
19. National Conference of Bar Examiners, Testing Task Force Phase 2 Report: 2019 Practice
Analysis, 25, 62 (Mar. 2020), https://testingtaskforce.org/wp-content/uploads/2020/03/
TestingTaskForce_Phase_2_Report_031020.pdf.
20. See discussion infra Part II.
21. E-mail from Chad Christensen, LSSSE Project Manager, Center for Postsecondary
Research, Indiana University, to author (Jan. 24, 2019, 10:10 CST) (on file with author).
This e-mail contained a copy of the questions for the 2018 administration of LSSSE. See also
Writing Like a Lawyer 571
study used blocked stepwise multiple regression to determine if any of these
activities, behaviors, or perceptions (collectively referred to in this study as
involvement activities) affected the scores on a LSSSE question asking law
student respondents to rate how much their law school experience “contributed
to your knowledge, skills, and personal development”
22
in writing. Alexander
Astin’s Involvement Theory
23
and I-E-O Model
24
served as the theoretical
and conceptual frameworks for this study, which created a basis for the study
and guided the data analysis process.
25
After analyzing the responses of
3803 full-time third-year law students who participated in the 2018 LSSSE
administration, the three items that had the strongest positive impacts on law
student self-reported gains in writing skills were three areas related to writing:
speaking skills, critical and analytical thinking skills, and legal research skills.
26
This essentially means legal writing is developed in conjunction with other
related skills. As such, law schools should use current first-year legal writing
programs and expand opportunities in the upper-level curriculum so students
can practice writing alongside speaking, critical and analytical thinking, and
legal research.
27
While this approach has some drawbacks, including law school
institutional inertia and the financial costs of curricular implementation,
28
helping students develop the writing skills needed for success on the bar exam
and the start of legal practice outweigh these concerns.
Furthermore, this study and its implications contribute to the existing legal
education literature. As this study formed the basis of a doctoral dissertation,
an in-depth review of the legal education literature on law student perceptions
of their writing skills and activities affecting law student self-reported gains in
writing skills during law school revealed few articles on these topics. The few
that surfaced included both quantitative and qualitative studies. For example,
one quantitative study examined first-year law students’ confidence in learning
legal writing before starting their legal writing course and their confidence
in their legal writing skills several weeks after starting the course.
29
Another
quantitative study used LSSSE data to determine which law school activities
LSSSE Survey, Law School Survey of Student engagement, https://lssse.indiana.edu/about-
lssse-surveys (last visited May 25, 2020).
22. Id.
23. Alexander W. Astin, Student Involvement: A Developmental Theory for Higher Education, 25 J. coLLege
student PersonneL 297 (1984), reprinted in 40 J. coLLege student dev. 518, 528–29 (1999).
24. aLexander w. astin, what matters in coLLege? four criticaL years revisited 7
(1993).
25. See discussion infra Part II.
26. See discussion infra Part II.
27. See discussion infra Part III.
28. See discussion infra Part IV.
29. Miriam E. Felsenburg & Laura P. Graham, Beginning Legal Writers in Their Own Words: Why the
First Weeks of Legal Writing are So Tough and What We Can Do about It, 16 LegaL writing 223, 239–
40, 279–80 (2010).
572 Journal of Legal Education
affected student self-reported gains in academic skills (writing was included
in academic skills) in third- and fourth-year law students.
30
LSSSE staff have
also looked at the relationships between certain law school activities covered
by LSSSE questions and student self-reported gains in writing skills as part
of their annual publications in 2006
31
and 2008.
32
Additionally, a qualitative
study examined the habits of students who had varying degrees of academic
success in a legal writing course.
33
Finally, only one prior doctoral dissertation
applied Astin’s Involvement Theory or I-E-O Model to law students
34
as this
article’s study has done. Thus, this study makes a new contribution to the
current legal education literature on law student perceptions of their writing
skills and activities affecting law student self-reported writing gains during law
school.
This article consists of four additional parts. Part II provides an overview
of the author’s dissertation study, including the theoretical and conceptual
frameworks, LSSSE data used, methodology for data analysis, and key
findings. Part III recommends maintaining current first-year legal writing
programs and expanding the upper-level curriculum to integrate more writing
and skills that may improve student self-reported gains in writing. Part IV
examines why law schools may struggle to adopt these recommendations, and
Part V provides concluding remarks.
II. Overview of Dissertation Study
This study was developed as a way to help address the issue of new lawyer
struggles with writing early in legal practice by examining whether any law
school involvement activities improve student self-reported gains in writing.
The following sections delve into the dissertation study’s research question
and frameworks, LSSSE dataset, study limitations, data analysis, and research
findings.
A. Research Question and Frameworks
This study’s research question asked whether any law school involvement
activities affected student self-reported gains in writing skills in full-time
third-year law students. Self-reported gains in writing were measured by
30. Carole Silver et al., Gaining from the System: Lessons from the Law School Survey of Student Engagement
About Student Development in Law School, 10 u. st. thomas L.J. 286, 287, 298–99 (2012).
31. 2006 Annual Survey Results: Engaging Legal Education: Moving Beyond the Status Quo, Law School
Survey of Student Engagement 11, 13, 15–16 (2006), http://lssse.indiana.edu/wp-content/
uploads/2016/01/LSSSE_2006_Annual_Report.pdf [hereinafter LSSSE 2006 Annual
Survey Results].
32. LSSSE 2008 Annual Survey Results, supra note 10, at 10–11.
33. Anne M. Enquist, Unlocking the Secrets of Highly Successful Legal Writing Students, 82 st. John’s L.
rev. 609, 610–11 (2008).
34. roBert r. detwiLer, assessing factors infLuencing student academic success
in Law schooL 41–43 (2011), https://etd.ohiolink.edu/apexprod/rws_etd/send_file/
send?accession=toledo1318730664&disposition=inline.
Writing Like a Lawyer 573
student responses to the LSSSE question that asked: “To what extent has
your experience at your law school contributed to your knowledge, skills,
and personal development in the following areas? . . . Writing clearly and
effectively.”
35
Student respondents were given the following answer choices:
“Very much, Quite a bit, Some, Very little.”
36
Examples of law school
involvement activities covered by LSSSE questions included cocurricular
activities, interacting with peers and professors, participating in classes,
undertaking various types of coursework, holding a job, and perceptions of the
law school experience.
37
To assist with data analysis, the research question was
broken into seven parts, with law school involvement activities divided among
parts three to seven: (1) Inputs (student characteristics), (2) Between-College
Characteristics (law school characteristics), (3) Academic Involvement,
(4) Student-Faculty Involvement, (5) Student-Student Involvement, (6)
Nonacademic Involvement, and (7) Intermediate Educational Outcomes.
Similar setups have been used by other researchers.
38
After the research question was determined, the study needed theoretical
and conceptual frameworks to provide both a theory underpinning the research
and a guide for the data analysis. Serving as the theoretical and conceptual
frameworks were Alexander Astin’s Involvement Theory
39
and I-E-O (Input-
Environment-Outcome) Model,
40
respectively.
Astin succinctly summarized his Involvement Theory as follows: “[T]he
greater the student’s involvement in college, the greater will be the amount of
student learning and personal development.”
41
To accomplish this, a school’s
curriculum “must elicit sufficient student effort and investment of energy
to bring about the desired learning and development.”
42
In other words,
students who engage themselves in school-related activities will likely learn
more from those experiences than students who choose to be less engaged
or unengaged. Astin focused on undergraduate students in developing his
Involvement Theory,
43
and only one researcher is currently known to have
applied Involvement Theory to a law student population.
44
Thus, using
35. E-mail from Chad Christensen, supra note 21.
36. Id.
37. Id.
38. See detwiLer, supra note 34, at 5–6; see also astin, supra note 24, at 13–15, 33–34, 70–77, 80–81.
39. Astin, supra note 23, at 528–29.
40. astin, supra note 24, at 7.
41. Astin, supra note 23, at 528–29.
42. Id. at 522.
43. Id. at 523.
44. See detwiLer, supra note 34, at 41–42.
574 Journal of Legal Education
Involvement Theory in the author’s dissertation study helps further expand
its use in studies of law students and enriches the literature in this area.
What does Involvement Theory mean for law schools? It may mean that
the more involved law students are with coursework, student organizations,
faculty members and peers, and cocurricular activities, the more knowledge
and skills gains (including those in writing) they may self-report as a result
of their legal education. The use of LSSSE data works well with this theory,
since LSSSE itself “is centered on the concept of student engagement—which
is based on the simple, yet powerful observation that the more engrossing the
educational experience, the more students will gain from it.”
45
In Astin’s I-E-O model, used here as the study’s conceptual framework,
researchers examine three types of data—inputs, environment, and outcomes.
46
Inputs (I) are the characteristics students possess when they first enter higher
education.
47
Environment (E) encompasses all the facets of the educational
experience—“the various programs, policies, faculty, peers, and educational
experiences to which the student is exposed.”
48
Outcomes (O) are the
characteristics students possess after spending time in higher education.
49
Researchers then review how student characteristics change over time (such
as between starting and finishing higher education) by comparing inputs to
outcomes and determining what impact an environment has on students’
outcomes.
50
However, in this dissertation’s study, legal education was
substituted for higher education in the I-E-O model, following the conceptual
framework of a similar dissertation study.
51
Figure 1 visually demonstrates the I-E-O model and the relationships among
inputs, environment, and outcomes. This study used inputs such as student
demographic characteristics, Law School Admission Test (LSAT) scores, and
undergraduate GPA. Activities students participate in during law school and
their perceptions of the law school experience served as environmental factors.
45. LSSSE Survey, Law School Survey of Student engagement, https://lssse.indiana.edu/about-
lssse-surveys (last visited May 25, 2020).
46. astin, supra note 24, at 7.
47. Id.
48. Id.
49. Id.
50. Id.
51. detwiLer, supra note 34, at 42.
Writing Like a Lawyer 575
The outcome of interest was student self-reported gains in writing skills by
full-time third-year law students. All of the data used in the I-E-O model came
from student responses to the 2018 LSSSE administration.
Figure 1. Astin’s I-E-O model
52
B. LSSSE Dataset
To determine whether any law school involvement activities affected student
self-reported gains in writing skills, this study used a dataset comprised of
all full-time, third-year law students who responded to LSSSE when it was
administered at their law schools in the spring semester of 2018. The goal of
limiting the dataset to solely full-time third-year law students was to obtain
a set of similarly situated survey respondents. Part-time students may not be
present at their law schools as often as full-time law students, and thus may
have different involvement levels or patterns from full-time students. This
approach was similar to how Astin limited one of his wide-ranging studies to
students who started college as full-time students because he recognized that a
full-time student population was very different from a part-time one.
53
Second,
because most full-time law students complete their studies in three years, these
third-year students would have taken LSSSE shortly before they graduated
from law school. This timing is important because some writing-focused law
school activities take place during the latter part of a student’s time in law
school, such as serving on a law review or journal, participating on moot court,
or working in a law school’s legal clinic.
54
Furthermore, these students have
already completed the first-year writing experience and have finished or are
nearly finished with upper-level writing experience required by the American
Bar Association (ABA).
55
Before examining the dataset used in the study, an overview of the law
school and law student participation in the 2018 administration of LSSSE
52. Figure adapted from aLexander w. astin & anthony Lising antonio, assessment for
exceLLence: the PhiLosoPhy and Practice of assessment and evaLuation in higher
education 19-20 (2d ed. 2012); astin, supra note 24, at 7.
53. astin, supra note 24, at xxv–xxvi.
54. ruta k. stroPus & charLotte d. tayLor, Bridging the gaP Between coLLege and Law
schooL: strategies for success 157 (2d ed. 2009).
55. ABA Standards and Rules of Procedure for Approval of Law Schools 2019-2020, Am. Bar Ass’n Section
of Legal Educ. & Admissions to the Bar, at 16 (2019) [hereinafter ABA Standards].
Environmental
Factors
OutcomesInputs
576 Journal of Legal Education
is instructive. In the 2018 spring semester, seventy-four U.S. law schools
administered LSSSE.
56
Only one of these law schools was not approved by
or seeking approval from the ABA.
57
With 203 ABA-approved law schools
nationwide,
58
this means approximately 36% of ABA-approved law schools
participated in the 2018 LSSSE administration. At these participating schools,
17,928 students from all years of law school participated in the survey, for an
overall response rate of 49%.
59
Because law schools must pay to administer LSSSE
60
and students
decide whether to participate in the survey,
61
LSSSE respondents are not a
random sample of all U.S. law students. This is a significant limitation of
the dissertation’s study. Because of this, Tables 1 and 2 are included to show
how U.S. law schools administering the 2018 LSSSE compared with all ABA-
approved law schools. LSSSE-administering schools tended to skew private
and slightly smaller (fewer than 500 students) than most ABA-approved law
schools, but otherwise they were fairly comparable.
Table 1
62
Comparison of Law School Size
Law School Size
(in Students)
2018
LSSSE-Administering
Law Schools
All ABA-Approved
Law Schools
Fewer than 500 61% 53%
500–900 31% 35%
More than 900 8% 12%
Table 2
63
56. E-mail from Jacquelyn Petzold, Research Analyst, Law School Survey of Student
Engagement, Center for Postsecondary Research, Indiana University, to author (Oct. 22,
2018, 15:17 CST) (on file with author).
57. E-mail from Jacquelyn Petzold, Research Analyst, Law School Survey of Student
Engagement, Center for Postsecondary Research, Indiana University, to author (Oct. 23,
2018, 14:14 CST) (on file with author).
58. ABA-Approved Law Schools, Am. Bar Ass’n Section of Legal Educ. & Admissions to the Bar,
https://www.americanbar.org/groups/legal_education/resources/aba_approved_law_
schools/ (last visited May 25, 2020).
59. E-mail from Jacquelyn Petzold, supra note 56.
60. Timeline and Fees, Law School Survey of Student Engagement, http://lssse.indiana.edu/
timeline-and-fees/ (last visited May 25, 2020).
61. Administering LSSSE, Law School Survey of Student Engagement, http://lssse.indiana.edu/
administering/ (last visited May 25, 2020).
62. E-mail from Chad Christensen, LSSSE Project Manager, Center for Postsecondary
Research, Indiana University, to author (Oct. 10, 2018, 13:15 CST) (on file with author).
63. Id.
Writing Like a Lawyer 577
Comparison of Law School Type
Type of Law School
2018
LSSSE-Administering
Law Schools
All ABA-Approved
Law Schools
Public 34% 42%
Private 66% 58%
This dissertation’s study sought to analyze survey responses of just one
group of LSSSE participants—full-time third-year students at U.S. law schools
who participated in the LSSSE when it was administered at their law schools
during the 2018 spring semester. This group equated to 4330 full-time third-year
law students. LSSSE staff were unable to provide a response rate specifically
for full-time third-year law students but recorded a response rate of 47.4% for
all third-year law students.
64
However, the actual number of full-time third-
year students whose survey responses were analyzed in this study was slightly
smaller, since certain student participants were excluded. Student respondents
were excluded if they did not answer the question about self-reported gains
in writing skills, which was the study’s outcome measure. Students were also
excluded if they did not answer both the LSAT score and undergraduate GPA
questions, as these served as proxy pretests for self-reported gains in writing,
since LSSSE does not have a pretest for writing skills. After removing these
students, this study analyzed the responses of 3803 full-time third-year law
students. This represented a loss of 527 students, or approximately 12.2%, of
the original group of all full-time third year students who participated in the
2018 LSSSE administration.
In terms of the student demographics for the dataset used in the regression,
52.9% of the students identified as female and 43.5% identified as male. The rest
(3.6%) either did not answer the question, did not wish to respond, or selected
“another gender identity.” The majority of students identified as white (63.2%),
while 26.8% identified as minority and 10% did not answer the minority status
question, declined to respond, or chose “other.” Regarding sexual orientation,
86.1% of the students in the dataset identified as heterosexual; 7.5% identified
as either gay, lesbian, bisexual, or questioning/unsure; and 6.4% did not
respond, preferred not to respond, or chose “another sexual orientation.” As
such, the average student in the dataset was a white heterosexual female.
Generally speaking, the student demographics of the dataset compared
favorably with those collected on all third-year law students by the ABA. As
of fall 2017 (the semester before the students in the dataset took LSSSE) there
were 33,726 total full- and part-time law students enrolled in ABA-approved law
schools.
65
Of this total, approximately 49.9% were female and 50.1% were male
64. E-mail from Jacqueline Petzold, supra note 56.
65. Section of Legal Education—ABA Required Disclosures, Am. Bar Ass’n Section of Legal Educ. &
Admissions to the Bar, http://abarequireddisclosures.org/Disclosure509.aspx (under
“Compilation—All Schools Data” select “2017” and “JD Enrollment and Ethnicity”) (last
visited May 25, 2020). This information is collected by the ABA each fall from all ABA-
578 Journal of Legal Education
(“other” gender consisted of a fraction of a percent).
66
In terms of minority
status, approximately 61.1% of all third-year law students were white, 30.7%
were minority, 3.5% were nonresidents, and 4.8% had an unknown minority
status.
67
While the ABA did not report information on sexual orientation and
the demographic data was not limited to full-time students, it did demonstrate
that the dataset’s gender and minority status reflected well the overall
population of all third-year law students at ABA-approved law schools. The
students in the dataset did skew slightly white and female, though.
A brief note about minority status and sexual orientation is in order. LSSSE
allows survey takers to choose from a large number of minority categories.
68
In the dissertation’s study, several of these categories did not have students
represented in the dataset, so it was decided to have two broad categories—
minority and nonminority. As for sexual orientation, even though the majority
of the students in the dataset were heterosexual, a decision was made not to
use two broad categories—heterosexual and nonheterosexual. The difference in
approach simply reflected the dataset’s inclusion of student respondents from
each of the sexual orientation categories, unlike the minority status categories.
For the academic profile, students in the dataset reported a mean LSAT
measure of 3.31 (the median was 3.00), with 3 representing an LSAT score in
the range of 151–155 and 4 representing an LSAT score in the range of 156–160.
As for undergraduate GPA measures, students in the sample reported a mean
of 4.14 (the median was 4.00), with 4 representing a GPA range of 3.00-3.49
and 5 representing a GPA range of 3.50 and higher. Last, for the question
“What have most of your grades been up to now at this law school?”
69
the
mean response was 5.85 (the median was 6.00), with a 5 being a “B” grade and
6 being a “B+” grade.
The students in the dataset came from law schools that were fairly evenly
spread out among all four 2018 U.S. News tiers, which are basically quartiles.
The tier breakdown was as follows: Tier 1: 26.3%, Tier 2: 20.4%, Tier 3: 21.4%,
and Tier 4: 31.9%. (LSSSE staff provided a school’s U.S. News tier for each
survey respondent in the dataset after a request from the author; it is not a
question on the survey.) The majority of the students in the dataset came from
private law schools (64.1%) vs. public law schools (35.9%). Additionally, law
schools attended by the students in the dataset generally enrolled 900 or fewer
students. LSSSE divides law schools into three categories by size: fewer than
500 students (47.9% of the students in the dataset), 500–900 students (39.4%
of the students in the dataset), and more than 900 students (12.6% of the
approved law schools as part of its annual questionnaire.
66. Id.
67. Id.
68. E-mail from Chad Christensen, supra note 21.
69. E-mail from Chad Christensen, supra note 21.
Writing Like a Lawyer 579
students in the dataset).
70
Thus, the average student in the dataset came from
a private law school with a relatively small student body.
D. Study Limitations
Before discussing the data analysis process, it should be noted that this
study contained several notable limitations. The most significant limitation
was that LSSSE relied on students to accurately and honestly self-report the
information requested by the survey. Law students participating in LSSSE
could have overestimated their involvement in law school or the gains in skills
they achieved, either because they did not know how to gauge their level of
involvement or progress, or they wanted to portray themselves in the most
favorable light. For example, one study found that first-year law students
were very optimistic in assessing their writing skills and predicting their legal
writing aptitude before taking a legal writing course.
71
Another important limitation was that this study had no pretest measure
for self-reported writing skills. LSSSE asked students to self-report their gains
in writing skills at the time they took the survey
72
(a post-test), but there was
nothing that measured students’ self-reported level of writing skills when they
entered law school (a pretest). Thus, there was no objective way to measure
these self-reported gains. To partially compensate for this lack of a pretest, this
dissertation’s study used students’ undergraduate GPAs and LSAT scores—as
measured by the corresponding LSSSE questions
73
—as proxy measures for the
level of writing skills students had when starting law school. Furthermore,
student self-reported writing skills gains are not an objective measure of
these skills like a graded writing assignment or exam. However, student self-
reported measures have merit because “[t]hese gains are based on students’
reflections on their own development stemming from law school . . . . [T]hey
are a useful complement to provide a more comprehensive understanding of
student learning and development.”
74
Last, there were no available data on the full-time third-year law students
who did not participate in LSSSE, either those students declining to participate
when LSSSE was offered at their law schools or those students whose schools
did not choose to participate in the 2018 administration of LSSSE. Thus,
it must be assumed that responding students’ answers to the survey were
representative of all law students nationwide, including those who did not
participate in the survey.
70. E-mail from Chad Christensen, supra note 62.
71. Felsenburg & Graham, supra note 29, at 239–40.
72. E-mail from Chad Christensen, supra note 21.
73. Id.
74. Silver et al., supra note 30, at 292.
580 Journal of Legal Education
C. Data Analysis
To start the data analysis process, student response data from the 112 LSSSE
questions used in this dissertation’s study were divided into seven blocks:
(1) Inputs, (2) Between-College Characteristics, (3) Academic Involvement,
(4) Student-Faculty Involvement, (5) Student-Student Involvement, (6)
Nonacademic Involvement, and (7) Intermediate Educational Outcomes.
These blocks corresponded to the seven parts of this study’s research question.
This setup also follows Astin’s I-E-O model,
75
as it has blocks representing
inputs as well as the different types of involvement activities in which students
can participate (environmental factors) so the researcher can determine
whether any of these activities affect the outcome of student self-reported
writing skills.
Block One (Inputs) contained demographic information including LSAT
score, undergraduate GPA, gender identity, race/ethnicity, sexual orientation,
age, and years between college graduation and starting law school, among
others. These were controlled to prevent bias in the outcomes.
76
Block Two
(Between-College Characteristics) comprised three law school characteristics—
size, status as public or private, and 2018 U.S. News ranking tier, as these were
the only law school characteristics provided in the dataset by LSSSE staff.
Block Three (Academic Involvement) grouped together educationally related
activities students may participate in during their time in law school, such as
class preparation; number of pages written; or participation in cocurricular
activities such as moot court, law review or journal, or law clinics. These
activities were of particular interest because a prior study with LSSSE data
found activities such as class preparation, class participation, and law review
or moot court participation had positive impacts on a measure of student self-
reported skills called academic gains (which included writing).
77
Block Four (Student-Faculty Involvement) included student activities
such as having conversations with faculty members, receiving feedback from
faculty, and working on projects or committees unrelated to coursework with
faculty members. One study using LSSSE data found a positive relationship
between frequent faculty feedback and student self-reported gains in writing;
78
another found a positive relationship between faculty interactions and student
self-reported academic gains.
79
Block Five (Student-Student Involvement)
included variables describing collaboration with other students, as well as
conversations with other students, including those of diverse backgrounds.
Block Six (Nonacademic Involvement) included student activities unrelated
to law school such as having a job and commuting.
75. astin, supra note 24, at 7.
76. Id. at 90.
77. Silver et al., supra note 30, at 298, 307–08.
78. LSSSE 2006 Annual Survey Results, supra note 31, at 11.
79. Silver et al., supra note 30, at 307.
Writing Like a Lawyer 581
Block Seven (Intermediate Educational Outcomes) comprised mainly
student satisfaction measures for different aspects of the law school experience,
student self-reported gains in various skills, and the likelihood that a student
would choose this law school or do a law degree once again. As such, this block
deserves some explanation. Astin’s I-E-O model is based on the assumption that
“the environmental variables occur prior in time to the outcome variables.”
80
While inputs describe students at entry into college, environmental variables
describe students’ activities during their time in college, which takes place
over the course of several years.
81
A student’s choice of activity early in college
may affect or influence the choice of activities later in college, and these later-
in-college activity choices (intermediate outcomes) could then influence the
outcomes (the O in the I-E-O model).
82
Interestingly, these intermediate
outcomes can even be regular outcome measures themselves, depending on
how the research is structured.
83
Because the influence and timing of these
intermediate educational outcomes is uncertain, this block is entered last in a
regression.
84
If there are multiple intermediate outcome blocks, they are added
“according to their known or expected temporal sequencing, with the most
ambiguous variables, such as student satisfaction with the college, consigned
to the last block.”
85
The SPSS software program analyzed the seven blocks of student response
data. Within SPSS, blocked stepwise multiple regression was used to
statistically determine whether any law school involvement activities affected
student self-reported gains in writing. In other words, this statistical analysis
revealed whether any law school involvement activity “adds anything to the
prediction of” student self-reported gains in writing beyond what might be
predicted by a student’s demographics, undergraduate GPA, LSAT score, and
other input measures.
86
The regression analysis controlled the input variables, because if there were
any existing relationships between certain inputs and environments, “the
possibility remains that any observed correlation between an environment and
an outcome measure may reflect the effect of some input characteristic rather
than the effect of the college environment.”
87
The actual blocked stepwise
multiple regression followed a process similar to that laid out by other
researchers.
88
The first block contained all the student responses to the various
80. astin, supra note 24, at 80.
81. Id.
82. Id.
83. Id.
84. Id. at 327.
85. Id. at 330.
86. Id. at 301.
87. astin, supra note 24, at 13–14.
88. astin & antonio, supra note 52, at 305–07; detwiLer, supra note 34, at 54–56, 64–65.
582 Journal of Legal Education
input questions and SPSS added each of these input questions (or variables)
individually into the regression “until no additional variable in that block is
capable of adding significantly to the prediction of”
89
law student self-reported
gains in writing. If an input question did not help predict student self-reported
gains in writing, it was not added to the regression equation. This process
was repeated for each of the six remaining blocks. When SPSS finished all
the blocks, the independent variables that remained in the final step helped
to predict student self-reported gains in writing. However, any variables in
the final step having beta weights that were not significant at the p<0.05 level
were removed from the regression, and another regression was run in order to
obtain a set of variables in the final step that were all significant at the p<0.05
level. These final variables were the law school involvement activities that had
statistically significant relationships to student self-reported writing gains.
D. Research Findings
While this study yielded fifteen law school involvement activities having a
statistically significant impact on student self-reported gains in writing skills,
this article will discuss only the three strongest ones. Interestingly, the three
involvement activities with the strongest impacts on student self-reported gains
in writing were not student involvement activities in the traditional sense—they
were other skills gains reported by students in the dataset. Speaking, critical
and analytical thinking, and legal research skills had the strongest impacts on
student self-reported gains in writing, respectively. The impact of each one
was positive, which means students who self-reported higher skills gains in
speaking, critical and analytical thinking, or legal research were more likely
to self-report higher skills gains in writing. Table 3 provides the numerical
strength of these impacts.
Table 3
Variables Affecting Student Self-Reported Gains in Writing Skills by Impact Strength
Ranking
Law School Involvement Activity
Final Step β
(Standardized
Coefficient β)
1 Speaking Clearly and Effectively 0.29***
2 Thinking Critically and Analytically 0.22***
3 Developing Legal Research Skills 0.21***
N = 3,803 R
2
= 0.571 Adjusted R
2
= 0.569
*p<0.05, **p<0.01, ***p<0.001
89. astin & antonio, supra note 52, at 305–07.
Writing Like a Lawyer 583
The main implication of these research findings is that writing skills in law
school are not developed in a vacuum—they are developed alongside speaking,
critical and analytical thinking, and legal research skills. This is unsurprising,
given that good speaking, thinking, and research go into effective legal
writing. For example, a description of a first-year writing course summarizes
how several of these skills are related:
[The course] does not just involve researching and writing.
Legal research itself is a complex task that may require
reading, evaluating, and filtering large amounts of material
just to enable the student to identify the issues to analyze.
Then, reading, reasoning, understanding, analyzing, and
even rereading must occur between the research process and
the writing process. Moreover, the writing process itself
should typically encompass outlining, multiple efforts at
drafting, revising, editing, formatting, and proofreading.
90
Additionally, a qualitative study of students in an introductory brief-writing
course reflected how these three skills were intertwined with legal writing.
91
In terms of speaking skills, more than half of the studied group of students
reported that their work in preparing for oral arguments helped them write
the first of two briefs for the course.
92
As for critical thinking skills in the
academically successful students, there was “an obvious connection between
their critical reading and critical thinking skills” as their notes reflected how
the cases they found would support their position (or their opponent’s
position) and how different cases might work together in their briefs.
93
Finally,
the academically successful students excelled at legal research—“[t]hey had the
ability to find the key cases, zero in on what was important in those cases, and
then know when to stop researching and start writing.”
94
III. Recommendation: Maintaining or Adding More Writing and
Writing-Related Activities to the Law School Curriculum
Based on the findings of this study, this section recommends maintaining the
first-year legal writing program and adding more curricular opportunities for
upper-level students to write and practice the skills shown to further students’
self-reported writing skills gains. Allowing students to practice writing as
well as speaking, critical and analytical thinking, and legal research will help
90. Felsenburg & Graham, supra note 29, at 293–94.
91. Enquist, supra note 33, at 657–58, 670.
92. Id. at 657–58.
93. Id. at 670.
94. Id. at 670.
584 Journal of Legal Education
prepare them for the writing they will encounter in legal practice and on the
state bar exam. As previously discussed, some students have reported feeling
unready for some law firm writing projects
95
and generally seem to want more
opportunities to work on writing they will use in legal practice.
96
Employers
seek to hire new lawyers with developed writing skills
97
and have lamented
that these writing skills have been lacking for decades.
98
However, students
will encounter difficulties in obtaining employment if they cannot pass the bar
exam, which includes writing sections comprising half or more of their score.
99
The next sections explore two recommendations. The first section will
discuss maintaining the current first-year legal writing curriculum, since
it generally incorporates writing and the three skills whose gains improved
students’ self-reported writing skills gains in the author’s dissertation study.
The second section discusses ways to integrate more opportunities to practice
writing and the three aforementioned skills in the upper-level curriculum.
A. Maintaining the First-Year Legal Writing Curriculum
The first-year legal writing course has long served as an introduction for law
students to the world of legal writing and should remain in its current form
as a key part of the law school curriculum. As the ABA mandates a first-year
writing experience,
100
the vast majority of law schools require students to take
two first-year legal writing courses.
101
Generally, the first course covers objective
and predictive writing and the second course covers persuasive writing.
102
Many legal writing faculty require students to complete office memorandums
and appellate or trial briefs as part of these courses.
103
Office memorandums
95. LexisNexis 2016, supra note 12, at 3.
96. LSSSE 2008 Annual Survey Results, supra note 1-0, at 10; LexisNexis, supra note 12, at 3.
97. Hamilton, supra note 16, at 551–58.
98. MacCrate report, supra note 1 at 332; Kosse & ButleRitchie, supra note 2, at 80, 86; LexisNexis
2015, supra note 7, at 7.
99. Bar Admission Requirements 2020, supra note 14, at 36–38.
100. ABA Standards, supra note 55, at 16.
101. ALWD/LWI Annual Legal Writing Survey: Report of the 2017-2018 Institutional Survey, Ass’n of Legal
Writing Directors & Legal Writing Institute at 25-26 (2017–2018), https://www.lwionline.org/
sites/default/files/Final%20ALWD%20LWI%202017-18%20Institutional%20Survey%20
Report.pdf [hereinafter ALWD/LWI 2017–2018 Survey].
102. Id.
103. am. Bar ass’n section of LegaL educ. & admissions to the Bar, sourceBook on LegaL
writing Programs 17, 21 (Eric B. Easton, ed., 2d ed. 2006) [hereinafter sourceBook];
see also Report of the Annual Legal Writing Survey 2015, Ass’n of Legal Writing Directors & Legal
Writing Institute at 13 (2015), https://www.alwd.org/images/resources/2015%20Survey%20
Report%20(AY%202014-2015).pdf [hereinafter ALWD/LWI 2015 Survey]. ALWD/LWI’s
Annual Legal Writing Survey was overhauled after the 2015 survey. As such, some footnotes
reference this version (2015) or the most recent version of the survey (2017–2018) depending
on the data sought simply because many of the questions have changed and thus the data is
not directly comparable.
Writing Like a Lawyer 585
are usually written by students to a fictional law firm partner predicting the
outcome of a client matter.
104
The goal of this assignment is objective legal
analysis that is written in a clear, organized way and includes correct legal
citations.
105
Mock briefs are written by students to persuade a trial or appellate
court to rule in favor of the students’ clients; the goal of the assignment is to
explore more challenging legal issues and analysis.
106
The emphasis on legal
analysis in both assignments is critical because “[l]egal writing is, after all, the
written expression of legal analysis.”
107
Two studies support the use of office memorandums and briefs as writing
assignments. Both assignments are created by legal writing faculty to mimic
documents students will see or use in legal practice. First, LSSSE found that
“practice-oriented writing assignments are more highly related to [student self-
reported] gains in . . . clear and effective writing” than academic papers.
108
Importantly, LSSSE included both memorandums and appellate briefs as types
of practice-oriented writing assignments.
109
Second, some summer associates
at larger firms thought additional training on how to write certain types of
documents would be helpful.
110
Almost 29% and 22% of the summer associates
surveyed specifically mentioned memorandums and briefs, respectively, as
areas where more training would be helpful.
111
Since students may work as
law firm summer associates after their first or second year of law school, this
means the first-year legal writing courses should continue or increase their use
of memorandums and briefs to prepare students for this work. However, if
students do not work as law firm summer associates until after their second
year of law school, their skills in memorandum and brief writing may become
rusty from lack of use.
Briefly reviewing how legal research is incorporated into the first-year legal
writing course is in order. It is usually taught by the course professor, a law
librarian, or both.
112
The amount of legal research practice law students get in
the first-year legal writing course varies with the writing assignments. Some
assignments require law students to do their own legal research, while others
require no research (a closed-universe assignment).
113
In most closed-universe
assignments, students are provided with the research materials needed to
complete the assignment. When students do their own research, that research
104. sourceBook, supra note 103, at 17.
105. Id. at 21.
106. Id.
107. Id. at 14.
108. LSSSE 2008 Annual Survey Results, supra note 10, at 11.
109. Id.
110. LexisNexis 2016, supra note 12, at 3.
111. Id.
112. ALWD/LWI 2015 Survey, supra note 103, at x, 11.
113. Id. at 12.
586 Journal of Legal Education
is closely intertwined with analysis and writing. Basically, “research, analysis,
and writing are not independent steps[;] [r]ather, students are taught to
begin their analysis and writing as they go through the research process.”
114
This process accords with the findings of this article’s dissertation study, as
it is reasonable to imagine that gains in self-reported critical and analytical
thinking or legal research skills would lead to self-reported gains in writing
skills.
Students in first-year legal writing courses typically receive feedback from
their professors as they prepare written drafts. Specific written feedback is
usually contained in margin notes, with general suggestions written at the end
of the draft.
115
Verbal feedback is usually provided in individual conferences
with the student and professor.
116
The professor may use the written comments
as a starting point for discussion, and students have the benefit of asking
the professor questions and learning more about the strengths and weakness
of their work.
117
Students are then able to incorporate this feedback into
subsequent drafts, strengthening their writing.
118
Discussions between students
and their professors about their writing are key to integrating speaking skills
into the first-year legal writing course, as there are fewer opportunities to
develop speaking skills compared with the legal research and thinking skills
that are integral to this course. However, for faculty to provide personalized
feedback and individual student conferences, these courses must have small
section enrollments. As such, the average course section has only twenty-one
to twenty-two students.
119
This feedback is important to students’ development as legal writers and
as professionals who will meet high expectations. For example, LSSSE data
showed that 87% of surveyed law students who reported receiving timely faculty
feedback “very often” realized substantial gains in self-reported writing skills;
this percentage dropped slightly to 80% for students reporting they received
this feedback “often.”
120
Additionally, LSSSE found statistically significant
and positive correlations for two survey questions related to receiving timely
faculty feedback and working to achieve the high expectations of faculty
members with student self-reported gains in writing skills.
121
A final component of the first-year legal writing course is oral advocacy.
Approximately 73% of surveyed law schools indicated they teach appellate
114. sourceBook, supra note 103, at 65.
115. Id. at 55.
116. Id. at 60.
117. Id. at 60–61.
118. Id.
119. ALWD/LWI 2017–2018 Survey supra note 101, at 27–28.
120. LSSSE 2006 Annual Survey Results, supra note 31, at 11.
121. Id. at 15.
Writing Like a Lawyer 587
argument skills in this course.
122
This allows students to argue the brief
they have written or are in the process of writing.
123
If students present oral
arguments while still writing the brief, they may “gain insights from the oral
argument that enhance their legal analysis, resulting in a much better written
brief.”
124
Students may similarly benefit if they argue a completed brief and
then revise it afterward.
125
The first-year legal writing course allows law students to practice their
writing skills and the three skills this article’s dissertation study found to
enhance student self-reported gains in writing skills. Students use speaking
skills when they meet with their professor to discuss feedback on their writing
or when they present mock oral arguments. Critical and analytical thinking
skills are woven throughout the first-year writing course, as are legal research
skills. As such, the first-year legal writing course in its present iteration must
be maintained.
B. Adding More Writing and Writing-Related Skills to the Upper-Level Curriculum
Currently, the ABA requires only one faculty-supervised writing experience
after a student’s first year of law school.
126
In the past, law students fulfilled
similar requirements “only by doing some sort of scholarly writing, such as a
journal article or seminar paper,” but there has been a trend toward allowing
students to take a practically oriented writing course instead.
127
As such, this
section discusses the primary types of courses law schools offer for students to
meet this ABA requirement or gain additional practice in legal writing after
their first year. It also examines how these courses incorporate opportunities to
practice the speaking, critical and analytical thinking, and legal research skills
found by this article’s dissertation study to boost student self-reported gains
in writing skills. Finally, this section recommends ways to integrate these skills
into traditional doctrinal courses in addition to legal writing courses.
While first-year legal writing courses are similar among law schools, the
same cannot be said of upper-level writing courses. For example, they can
cover topics as diverse as drafting for a specific area of law, more generalized
drafting for contracts or litigation, and scholarly writing.
128
Also, scholarly
writing is a major component of most seminar courses, as students usually
write a well-researched paper similar to the ones submitted to law reviews and
122. ALWD/LWI 2015 Survey, supra note 112, at xi, 13.
123. sourceBook, supra note 103, at 31.
124. Id.
125. Id.
126. ABA Standards, supra note 56, at 16.
127. ALWD/LWI 2015 Survey, supra note 103, at x.
128. ALWD/LWI 2017-2018 Survey, supra note 101, at 38.
588 Journal of Legal Education
journals.
129
Despite the variety of upper-level writing courses, they tend to fall
into two categories: scholarly writing and practical writing.
Both types of writing—scholarly and practical—help students practice
their writing skills, deepen their knowledge of the law, and prepare for their
work as attorneys. For instance, scholarly writing forces students to learn
and write about a topic in the way that practicing attorneys do—they must
identify the issue at hand and find a solution while teaching themselves about
the subject matter.
130
In doing so, students learn that writing is not linear—it
is very much recursive—and learn to balance this time-intensive process with
other competing responsibilities.
131
Similarly, practically focused writing helps
students prepare for legal practice through its emphasis on technical writing
and “the knowledge, skills, and professional judgments that are required for
successful writing.”
132
Scholarly writing is commonly taught in a seminar course.
133
A key part
of this course is student production of a paper of scholarly quality with
feedback and supervision from a faculty member, making it a popular way for
law schools to comply with the ABA Standards mandating another writing
experience after a student’s first year of legal education.
134
In a scholarly paper,
students write about a particular issue and propose a resolution “that builds
upon a basis of knowledge in multiple subject areas.”
135
Doing so requires
students to synthesize doctrinal legal knowledge and writing skills into the
same project when these skills may otherwise be taught separately in different
classes.
136
Ideally, the goals of a scholarly writing course can be summarized
as follows: “[T]he student will work with complex materials, receive advanced
research experience, and engage in a type of critical legal thinking that is unlike
the types of analyses required for other forms of legal writing.”
137
Despite its
scholarly nature, this writing can hone certain skills students need for law
practice, such as spotting issues and explaining how best to resolve them.
138
129. sourceBook, supra note 103, at 183, 193.
130. Kristina V. Foehrkolb & Marc A. DeSimone, Jr., Debunking the Myths Surrounding Student Scholarly
Writing, 74 md. L. rev. 169, 173–74, 177–78 (2014).
131. Id. at 175, 178.
132. Sherri Lee Keene, One Small Step for Legal Writing, One Giant Leap for Legal Education: Making the Case
for More Writing Opportunities in the “Practice-Ready” Law School Curriculum, 65 mercer L. rev. 467,
493 (2013).
133. sourceBook, supra note 103, at 193.
134. Id.
135. Foehrkolb & DeSimone, Jr., supra note 130, at 170.
136. Id. at 170, 177.
137. sourceBook, supra note 103, at 193.
138. Foehrkolb & DeSimone, Jr., supra note 130, at 170, 173–74.
Writing Like a Lawyer 589
From these descriptions, it is clear that scholarly writing courses allow
students to practice legal research and critical and analytical thinking skills.
However, one area in which these courses may be improved is in the area of
speaking skills. While there are likely some student speaking skills already
involved in the course—such as exploring paper topics and strategies and
discussing feedback with their professor—more can be added. For instance, the
professor can require students to make a formal presentation on their paper
topic or the final version of their paper to their course peers. Explaining their
work to peers helps students think about their writing in a different way and
allows them to answer questions and obtain feedback from another source.
Students can use the information gained from their presentation to revise and
strengthen their written work.
Recommending that students discuss or present their written work and
obtain feedback is not without precedent. Law faculty do this with their
own scholarly work when they “expand their knowledge and learn from the
expertise of their peers by discussing scholarly drafts before working groups
and providing feedback to one another on written drafts.”
139
Also providing
support for this recommendation is a quantitative study using LSSSE data
to identify aspects of legal education that promote third- and fourth-year
law students’ self-reported academic gains.
140
In the study, “academic gains”
comprised student self-reported gains in seven related areas: writing, speaking,
thinking, legal research, independent learning, job skills, and broad-based
education in law.
141
All seven skills are arguably used in a scholarly writing
course, so the results of this study are particularly pertinent. The aspects
of legal education that aided this cluster of skills called academic gains
were student interactions with professors and peers, the use of higher-order
learning in educational activities, preparation for and participation in courses,
and moot court or law review service.
142
The finding that interactions with
professors and peers stimulate academic gains gives additional credence to
the recommendation that students be given opportunities to discuss and get
feedback on their work in scholarly writing courses. However, to facilitate this
feedback and interaction with both the professor and peers, scholarly writing
courses must have a low student-faculty ratio. These courses may enroll only
about a dozen students per section.
143
The other type of law school writing course is practical writing. Courses on
practical writing center around the types of writing and documents used in law
practice. These courses can be more of an overview; a number of law schools
139. Keene, supra note 132, at 491.
140. Silver et al., supra note 30, at 287, 291–92.
141. Id. at 298.
142. Id. at 307–08.
143. ALWD/LWI 2017–2018 Survey, supra note 101, at 45.
590 Journal of Legal Education
offer courses in general drafting or creating contracts.
144
A general course on
drafting may include “draft[ing] a contract, a will or trust, a statute, and a set
of jury instructions to give students the broadest range of experience.”
145
Other
drafting courses focus on the documents needed for general or appellate
litigation.
146
Finally, other courses may focus on a particular legal practice area
(such as real estate), which allows students to write and familiarize themselves
with documents pertinent to that practice area.
147
Practical writing is important to students’ development as legal writers. As
part of a study using LSSSE data, researchers found that practical legal writing
had a stronger positive relationship to student self-reported gains in writing,
legal research, and job skills than more academic or scholarly writing.
148
Furthermore, this stronger positive relationship with practical writing also
extended to students’ self-reported gains in “[a]pplying . . . legal writing skills
to real-world situations.”
149
Practical writing courses offer several benefits to law students. Like other
legal writing courses, they “aid the students’ understanding of theory and
doctrine, sharpen their analytical skills, improve their understanding of the
legal profession, and in some instances cultivate their practical wisdom.”
150
Students receive faculty feedback on their work, since “[t]he best way to learn
this important skill [legal drafting] is by drafting documents and getting
timely, quality, individualized feedback.”
151
While the feedback helps students
improve their current writing, it also prepares them for the collaborative
nature of law practice. New attorneys must view written work as an ongoing
work-in-progress involving multiple drafts and feedback from colleagues or
supervisors.
152
As with other legal writing courses, enrollments must be kept
small. This generally limits course sections to about ten to fifteen students.
153
Practical writing courses integrate well the critical and analytical thinking
skills this article’s dissertation study found to advance students’ self-reported
gains in writing skills. Speaking skills are used in the course when students
discuss feedback or work with the professor to improve their draft documents.
144. Id. at 38.
145. sourceBook, supra note 103, at 178.
146. ALWD/LWI 2017–2018 Survey, supra note 101, at 38.
147. sourceBook, supra note 103, at 179–80.
148. LSSSE 2008 Annual Survey Results, supra note 10, at 11.
149. Id.
150. roy stuckey et aL., Best Practices for LegaL education: a vision and a roadmaP 148–
49 (2007) [hereinafter Best Practices for LegaL education].
151. sourceBook, supra note 103, at 182.
152. wiLLiam m. suLLivan et aL., educating Lawyers: PreParation for the Profession of
Law 98–99 (2007) [hereinafter Carnegie Report].
153. ALWD/LWI 2017–2018 Survey, supra note 101, at 42–45.
Writing Like a Lawyer 591
These speaking opportunities may be significant, since practical writing
courses optimally include “at least three and as many as six or seven graded
and critiqued drafts and assignments.”
154
However, legal research needs to be
incorporated into practical writing courses whenever possible. While the focus
of the course is document drafting, faculty can require students to do some
related independent legal research. For example, students can explore common
practitioner materials or form books for a particular type of document or area
of law. Not only does this exercise help students with their coursework, but it
also exposes them to resources used by practicing attorneys.
Both scholarly and practical writing courses provide students an avenue
to practice different types of legal writing. These courses also allow (or can
be modified to allow) students to use the three skills this article’s dissertation
study found to promote students’ self-reported gains in writing skills.
However, while law schools should continue offering some scholarly writing
courses, they must expand their practical writing course offerings, since these
are directly applicable to the work students will do shortly after graduation.
C. Writing in Doctrinal Courses
Most doctrinal courses involve minimal, if any, writing practice for
students.
155
This tradition, coupled with the ABA requirement of a first-year
and upper-level writing experience,
156
means students may take only two or
three courses focused on legal writing. Unless students seek out additional
elective writing courses, they may graduate with only limited curricular writing
experience. Limited opportunities for writing are worrisome, because the
more practice students have in writing, the more they improve.
157
Accordingly,
“[w]ith so little required writing, it is hardly surprising that new graduates do
not write as well as more senior members of the [legal] profession. After all,
repetition and practice are essential to improving writing skills.”
158
Some scholars suggest that legal writing should be a requisite part of
all six semesters of law school.
159
Having a legal writing-focused course or
legal writing experience in every semester of law school may not be easy or
practical to implement for most law schools without significant planning
154. sourceBook, supra note 103, at 182.
155. Keene, supra note 132, at 468.
156. ABA Standards, supra note 52, at 16.
157. Patrick T. O’Day & George D. Kuh, Assessing What Matters in Law School: The Law School Survey of
Student Engagement, 81 ind. L. J. 401, 406 (2006).
158. Kosse & ButleRitchie, supra note 2, at 87.
159. Adam Lamparello & Charles E. MacLean, Integrating Legal Writing and Experiential Learning
into a Required Six-Semester Curriculum that Trains Students in Core Competencies, “Soft” Skills, and Real-
World Judgement, 43 caP. u. L. rev. 59, 63 (2015); see also Kristen Konrad Tiscione, A Writing
Revolution: Using Legal Writing’s “Hobble” to Solve Legal Education’s Problem, 42 caP. u. L. rev. 143,
159–60 (2014).
592 Journal of Legal Education
and resources. Thus, as an intermediate step, one way to ensure all students
continue to practice legal writing is to incorporate writing assignments into
existing doctrinal courses, focusing on legal documents relevant to that
particular doctrinal area.
160
Also, in doctrinal courses whose subject matter is
tested on the bar exam, faculty can assign bar exam-style essay questions. This
type of assignment supports both writing practice and bar exam preparation.
However, the type of writing assigned to students is not as important as simply
having students engage in the act of writing.
161
Furthermore, LSSSE data
indicated a positive relationship between pages of writing completed during
the school year and student self-reported writing skills gains.
162
Students
seem to be interested in adding writing to their doctrinal courses as well.
163
Finally, and not insignificantly, adding writing to doctrinal courses spreads
the responsibility for teaching writing skills to the law faculty as a whole.
164
This may increase the amount of support for legal writing and emphasize its
importance to students.
Adding writing as a component of a doctrinal course must include drafting
assignments relevant to the topic of the course, as this allows students to
combine their subject-matter knowledge and writing skills to create a practice-
oriented document.
165
(The same idea applies to assigning bar exam essay
questions related to bar-tested course topics.) Doing so is part of the “writing
across the curriculum” pedagogical strategy and is specifically known as
“writing in the discipline.”
166
There are numerous examples of implementation.
“Students taking a Business Associations course could be required to draft
a partnership agreement or corporate bylaws. Students taking a course in
Intellectual Property could draft a licensing agreement . . . . Students taking
Evidence could draft a motion in limine and a supporting memorandum
of law.”
167
Subject-specific writing assignments should be used primarily in
upper-level doctrinal courses because students already have a foundation to
build upon from their first-year legal writing course.
168
As with other courses
involving writing, it is important that students receive feedback and credit
160. Pamela Lysaght & Cristina D. Lockwood, Writing-across-the-Law-School-Curriculum: Theoretical
Justifications, Curricular Implications, 2 J. ass’n LegaL writing directors 73, 100 (2004).
161. Tiscione, supra note 159, at 145.
162. LSSSE 2008 Annual Survey Results, supra note 10, at 10–11.
163. Carnegie Report, supra note 153, at 104.
164. Lysaght & Lockwood, supra note 160, at 73–74.
165. Id. at 100.
166. Id. at 75.
167. Kenneth D. Chestek, MacCrate (In)Action: The Case for Enhancing the Upper-Level Writing Requirement
in Law Schools, 78 u. coLo. L. rev. 115, 144 (2007).
168. Lysaght & Lockwood, supra note 160, at 76, 101–02.
Writing Like a Lawyer 593
for their written work product from their professor.
169
Feedback in doctrinal
courses can be beneficial to both students and the professor—students learn
whether their work would be acceptable in law practice (or on the bar exam),
and the professor can determine whether students understand and can apply
the concepts discussed in the course.
170
However, since doctrinal courses are
usually much larger than writing courses, feedback may be less in-depth and
individualized simply because of the higher student-faculty ratio.
Aside from giving students additional opportunities to practice writing,
adding subject-specific writing assignments to doctrinal courses has a
number of other benefits. First, students work like practicing attorneys by
using doctrinal knowledge and practical skills simultaneously. As one scholar
explained, “[M]ost legal skills cannot be easily segregated from legal theory
and doctrine, but instead require attorneys to apply their knowledge of the law
to accomplish specific tasks in the course of client representation.”
171
Also, these
assignments force students to learn “the resources and methodologies within
various legal subjects,”
172
thereby adding a legal research “in the discipline”
component to the written work. Finally, adding practice-related writing to
doctrinal courses is an efficient way for students to practice at least some of the
skills this article’s dissertation study found to advance student self-reported
gains in writing skills.
Efficiency aside, practicing these three skills (speaking, critical and analytical
thinking, and legal research) in doctrinal courses is sensible in terms of
preparing students to become attorneys. For example, students may complete
basic background research on a topic or search for subject-specific materials
such as formbooks or practice guides before drafting a document. This is good
practice for students because key research materials vary depending on the area
of law. Second, the law practice-oriented nature of the writing assignments can
help improve students’ analytical thinking. “It forces students to see the legal
doctrine in a very practical way. . . . Such assignments can capture a student’s
imagination and help her picture herself as a professional, as well as force
her to analyze the material in a different way so as to better understand its
practical implications.”
173
Speaking skills can be more challenging to integrate
because of the larger size of most doctrinal courses. However, students can
work together in pairs or small groups during class to draft, for example, a
basic contract or articles of incorporation. Doing so would require students
to talk to one another to draft an acceptable document. Support for in-class
group collaboration comes from LSSSE data showing that 46% of students
who worked “very often” with their peers in class had higher self-reported
169. Chestek, supra note 167, at 144; see also Lysaght & Lockwood, supra note 160, at 103–04.
170. Lysaght & Lockwood, supra note 160, at 103–04.
171. Keene, supra note 132, at 475.
172. Lysaght & Lockwood, supra note 160, at 101.
173. Chestek, supra note 167, at 144.
594 Journal of Legal Education
gains in writing compared with students who never did this in-class work.
174
Additionally, in-class group collaboration reduces the grading and feedback
required of the professor, and students experience the collaboration usually
required to create a document in legal practice.
175
Few law schools have formal writing across the curriculum programs or
require writing in some nonwriting and nonseminar courses.
176
However,
a formal program is not required to add a practical writing component to
upper-level doctrinal courses. Adding a writing component or expanding the
number of doctrinal courses that provide a writing component gives students
more opportunities in the upper-level curriculum to practice writing and the
skills found to promote student self-reported gains in writing. Furthermore,
refining these skills in law school benefits new attorneys. As one scholar noted:
“[G]ood legal writing is often the culmination of many skills important to
legal practice (such as legal analysis, legal research, factual investigation, advocacy,
and problem-solving)” (emphasis added).
177
IV. Law Schools May Struggle to Adopt These Recommendations
Making changes to a law school’s curriculum takes significant time, energy,
and advanced planning. As such, this article’s recommendations to maintain
the first-year legal writing curriculum as is and increase the opportunities
for students to practice legal writing in the upper-level curriculum were
intentionally kept modest. The goal was to suggest smaller but effectual
curricular changes that require students to use their writing skills and the three
skills found to bolster student self-reported gains in writing. Furthermore,
these recommendations were designed to encourage support for courses that
already incorporate all these skills and demonstrate how more of these skills
can be incorporated into existing courses. However, implementing these
recommendations may still be challenging because of institutional inertia
and financial costs to law schools and their students. Each of these issues is
explored briefly in the following sections.
A. Institutional Inertia
Most law schools are slow to embrace change and seem to prefer continuing
with the teaching styles traditionally used in legal education. The Socratic
method has been a long-standing hallmark of law school pedagogy, with one
national report noting that “[t]ypical classroom instruction at most law schools
today would be familiar to any lawyer who attended law school during the
174. LSSSE 2006 Annual Survey Results, supra note 31, at 13.
175. Lysaght & Lockwood, supra note 160, at 105.
176. ALWD/LWI 2017-2018 Survey, supra note 101, at 211.
177. Keene, supra note 132, at 476.
Writing Like a Lawyer 595
past hundred thirty years.”
178
First-year legal writing courses have a curriculum
that has seen little change in a quarter-century.
179
In fact, most of the first-
year curriculum has been static for decades as well.
180
Fortunately, bright spots
in curricular innovation over the years have been the growth of law school
clinics
181
and the use of “professional lawyers” as legal writing faculty (as
opposed to third-year law students or other law professors).
182
However, law schools can move quickly and decisively when the situation
warrants it. For instance, during the COVID-19 pandemic, every ABA-
approved law school converted in-person courses to online courses.
183
Despite
online learning’s relatively limited use in legal education, law faculty converted
their spring semester courses in mere weeks (if not days). Obviously, changing
the curriculum to include more writing activities cannot be done this rapidly
and requires significant advanced planning. Depending on the law school,
additional practical writing courses may need to be developed and additional
faculty may need to be hired because of the lower student-faculty ratios
required for writing courses. However, at a minimum, law schools must give
faculty time to prepare new courses or retool existing courses to include or
increase opportunities to practice writing, speaking, critical and analytical
thinking, and legal research skills.
B. Financial Costs to Law Schools
Expanding even modestly the availability of upper-level legal writing
courses and doctrinal courses with a writing component entails fairly significant
financial costs. More faculty may need to be hired to teach scholarly writing
(or seminar) courses and practically oriented writing courses (such as general
drafting courses), since these require a low student-faculty ratio. Additionally,
if law schools seek to reduce the size of doctrinal courses to incorporate more
writing assignments or increased faculty feedback on student writing, hiring
more faculty will be necessary to accommodate additional course sections.
Furthermore, some current faculty members will need time (and perhaps a
course release) to design new writing courses or retool existing courses to
incorporate more writing and writing-related skills.
178. Best Practices for LegaL education, supra note 150, at 133.
179. Vorenberg & McCabe, supra note 5, at 3.
180. John H. Garvey, The Business of Running a Law School, 33 u. toL. L. rev. 37, 37 (2001).
181. Id. at 38; see also Ann C. McGinley, Employment Law Considerations for Law Schools Hiring Legal
Writing Professors, 66 J. LegaL educ. 585, 585 (2017).
182. McGinley, supra note 181, at 585.
183. Paul L. Caron, 100% of Law Schools Have Moved Online Due to the Coronavirus, taxProf BLog
(Mar. 18, 2020), https://taxprof.typepad.com/taxprof_blog/2020/03/list-of-law-schools-
that-have-moved-online-due-to-the-coronvirus.html.
596 Journal of Legal Education
Generally, the cost of teaching the curriculum accounts for the largest
portion of a law school’s budget.
184
This cost includes more than salary and
benefits for faculty members; it also encompasses the support they need to do
their jobs.
185
Such support may include funding for research and professional
development, plus secretarial assistance.
186
However, the cost of salaries varies
greatly depending on the type of faculty member hired. Tenure or tenure-track
faculty are generally paid more than legal writing faculty, and adjunct faculty
earn significantly less because of their part-time status.
187
According to law school-reported data collected by the Society of American
Law Teachers, tenure-track faculty at responding schools earn a base salary
of between approximately $72,000 and $150,000 annually.
188
This is a wide
salary range, and only a limited number of law schools reported salary data.
189
According to the Association of Legal Writing Directors and the Legal
Writing Institute’s (ALWD/LWI) most recent annual survey, the base salary
of an entry-level legal writing faculty member depends on status—is the faculty
member considered traditional or programmatic tenure-track or another
status?
190
The mean starting salary for legal writing faculty at the responding
schools was between approximately $69,000 and $95,000.
191
While these two
surveys are not directly comparable and both have low law school response
rates, they serve to show the significant contrast in starting salaries between
tenure-track and entry-level legal writing faculty.
Adjunct law faculty are usually practicing attorneys.
192
Since they are not
full-time faculty, hiring adjunct faculty can be a cost-effective way to offer
certain courses.
193
Adjunct faculty can “teach[] specialized subjects such as
discovery, summary judgment, and transactional drafting . . . [and] bring
law practice into the classroom.”
194
Some adjunct faculty may even become
mentors to their students as well.
195
However, these benefits must be balanced
with the understanding that adjunct faculty are not present at the law school
184. Garvey, supra note 180, at 37.
185. Martin J. Katz, Understanding the Costs of Experiential Legal Education, 1 J. exPerientiaL Learning
28, 36, 38 (2015).
186. Id.
187. Garvey, supra note 180, at 40–41.
188. 2018–2019 SALT Salary Survey, Society of American Law Teachers, 1–4 (2019), https://www.
saltlaw.org/wp-content/uploads/2015/03/SALT-salary-survey-2019-final-draft.pdf.
189. Id.
190. ALWD/LWI 2017–2018 Survey, supra note 101, at 138.
191. Id. at 138–140.
192. Lamparello & MacLean, supra note 159, at 85.
193. Garvey, supra note 180, at 41.
194. Lamparello & MacLean, supra note 159, at 85.
195. Id. at 85–86.
Writing Like a Lawyer 597
as frequently as full-time faculty and have competing law practice demands on
their time.
196
Thus, adjunct faculty may have limited time to work with their
students.
Hiring additional faculty represents a significant financial expenditure for
law schools. How will law schools pay for the expansion of their faculties to
increase opportunities for students to practice writing and the three skills
promoting student self-reported gains in writing? One way is to pass the costs
on to students in the form of higher tuition, which is discussed in the next
section.
C. Financial Costs to Law Students
To cover the cost of hiring additional faculty to support the expansion of
curricular writing opportunities, law schools may be forced to increase their
tuition. When this occurs, students may need to rely more heavily on student
loans to finance their legal education. The percentage of students using loans
to finance their legal education varies by law school.
197
However, for the class of
2019, all but one law school surveyed had over 50% of their graduates with law
school loans; this is especially significant considering that 181 ABA-approved
law schools provided student loan data.
198
The average student loan debt also
varies by law school.
199
For the class of 2019, law schools reported an average
student loan debt of approximately $110,000—which was approximately $2000
higher than for the class of 2017.
200
This high level of law student borrowing should not come as a surprise,
as it has been increasing for years. LSSSE researchers examined trends on
student loan debt over a decade, specifically analyzing data from LSSSE
administrations in 2006, 2011, and 2015.
201
One of the findings was that the
percentage of student respondents who expected to have law school debt
greater than $100,000 grew from 32% in 2006 to 44% in both 2011 and 2015.
202
LSSSE researchers also noted that “[w]ith a few slight exceptions, in every
survey year, respondents were less likely to state that they would attend the
196. Garvey, supra note 180, at 41.
197. E-mail from Tiffane Cochran, Managing Director, Research, AccessLex, to author (Apr. 8,
2020, 17:59 CST) (on file with author). Ms. Cochran shared subscription-based U.S. News
student loan data in a spreadsheet from which the author did some basic calculations.
198. Id.
199. Id.
200. Id.
201. 2015 Annual Survey Results: How a Decade of Debt Changed the Law Student Experience, Law
School Survey of Student Engagement 8 (2015), https://lssse.indiana.edu/wp-content/
uploads/2016/01/LSSSE-Annual-Report-2015-Update-FINAL-revised-web.pdf.
202. Id. at 10.
598 Journal of Legal Education
same law school as expected debt increased.”
203
They also observed a similar
trend regarding student satisfaction with their law school experience—
“respondents who expected to owe more than $120,000 were noticeably less
likely to respond favorably to the satisfaction questions.”
204
This means law
schools with higher average student debt loads could have less satisfied (or
supportive) students and alumni than schools with smaller average debt loads.
V. Conclusion
Complaints by the bench and bar that new attorneys do not write well have
lingered for decades. Due to these complaints and the fundamental importance
of writing to the legal profession, the author sought to determine whether
any law school involvement activities affected law student self-reported gains
in writing skills in her dissertation research study. This article provided an
overview of that research study, which examined the responses of full-time
third-year law students responding to the 2018 administration of LSSSE. The
results of the study revealed that law student self-reported gains in speaking,
critical and analytical thinking, and legal research skills improved law student
self-reported gains in writing skills.
Based on these results, this article recommends that law schools maintain
their first-year legal writing curriculum, since it generally incorporates
opportunities to practice writing and the three skills that boost law student
self-reported gains in writing. The article further recommends increasing the
opportunities for law students to practice writing and the three aforementioned
skills in the upper-level curriculum through the use of scholarly and practical
writing courses and integration of these skills into traditional doctrinal courses.
Finally, this article acknowledges the challenges inherent in implementing its
recommendations at law schools, namely institutional inertia and financial
costs to law schools and their students.
203. Id. at 15.
204. Id. at 14–15.
