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Koller, D L --- "Legal Writing and Academic Support: Timing Is Everything" [2006] LegEdDig 9; (2006) 14(3) Legal Education Digest 12

Legal Writing and Academic Support: Timing is Everything

D L Koller

[2006] LegEdDig 9; (2006) 14(3) Legal Education Digest 12

U Maryland L Sch Leg Stud Research Paper 2004–19, pp 1–20

Consistent with the belief that academic support and legal writing can be combined effectively, some scholars have detailed important ways that a legal writing course can contribute to the academic support mission of a law school. Like many law schools, Maryland several years ago determined that it needed to do more to provide academic support services to struggling students.

The author’s experience is that, if ‘at risk’ students are targeted for assistance before first-semester grades are available, academic support efforts would be both over- and under-inclusive. Many students who ultimately struggle would be overlooked, and several students who are deemed ‘at risk’ in fact do fine. Because of the number of assignments and frequent contact with students, it is often assumed that legal writing instructors are ‘uniquely positioned’ to determine which students will need academic support. While in many cases this may be true, in fact, legal writing courses are far from being a perfect diagnostic tool for determining which students will need academic support and which will not.

Legal writing courses cannot be all things to all students. The view that they provide a kind of ‘built-in’ academic support is likely rooted in outdated views of what academic support programs really do, and an unrealistic vision of what legal writing courses can and should achieve. The goals of a first-year legal writing course are in many ways the same as those in traditional first-year substantive courses. Academic support, on the other hand, commonly refers to programs which are intended to improve the academic performance of traditionally at risk students and to provide early academic assistance to those at risk of not succeeding. Academic support programs can take many forms.

In fact, teaching legal writing may be getting harder every year. It has been noted that today’s students are spending relatively little time on writing during their undergraduate education. Struggling students, on the other hand, do not simply need assistance with their writing skills; they need assistance with being students — literally learning how to learn. In addition to its own ambitious goals and the effort required to achieve them, the first-year legal writing course is also limited in its ability to identify and assist students because it is usually not structured in a way that allows for the more in-depth assistance a struggling student requires.

Even if, however, a legal writing professor was aware of these concepts of learning theory and was willing and able to counsel struggling students to help them find their preferred method of absorbing new information and adjust class materials to facilitate this, it may be that this would not help. This is because some students struggle, not because they prefer a mode of absorbing information other than verbal, but for other reasons. Some may not have made the adjustment from passive college learning to the more active learning required in law school. On the other hand, some students might benefit from more ‘contextualised learning’ techniques, which help students relate new material to their prior experiences, encourage them to express their views on the material and explicitly show them how to use the material they are learning on an exam.

All of this is not to say that the first-year legal writing courses cannot offer some benefits to struggling students. There are several features of a legal writing course that can be pedagogically superior to the typical substantive course. In a first-year legal writing course, however, the support is usually more specific to the particular assignment at hand. Thus, while a struggling student might get a reasonable grade on that assignment, he or she may take little away from that experience which can be applied to other courses. Finally, while there can be important pedagogical benefits to the small section format and other features of most first-year legal writing courses, this is often outweighed, at least for struggling students, by the stress of completing the assignments. The legal writing course, even when conducted by an academic support professional, cannot be all things to all students.

Teaching legal writing often requires a one-on-one approach and a level of spoon feeding that would be objectionable if done in an academic support setting. A struggling student, on the other hand, is typically not able to take the substantive assistance provided by a legal writing professor and use it for more independent future work. They can be so overwhelmed by the legal writing course and their other courses, that they become dependent on frequent conferences and require a steady amount of assistance throughout the semester to complete the assignments.

However, there is also a need for upper-level academic support because, while students participating in first-year legal writing courses have a much more positive exam experience and overall renewed enthusiasm for law school, they want more assistance to continue improving, as well as to be comfortable with the independent learning and problem solving that will be required of them as practising lawyers.

The student benefits from a legal writing course for upper-level academic support, because the student has had one year of law school and he or she is less likely to be as dependent and resistant to active learning as a first-year law student can be. Because they have matured as law students, they are less likely to expect the type of substantive tutoring and assistance that they frequently expect as first-year students. Getting students comfortable and competent with active, independent learning is critical for law students’ future success. Most entering law students are conditioned to learn passively, not actively. One of the hardest things to convey to struggling students is that they must take responsibility for their learning and actively engage in the learning process.

Taking the students to the next level of understanding can be done, however, in an upper-level legal writing course. First, the course can more squarely focus on the analysis component of legal problems because the ‘socialisation’ issues encountered with new law students should be gone. Second, the course presents several opportunities for students to receive feedback not just on the substance of their analysis, but also on the process of developing that analysis. Third, the course can easily be designed to facilitate deeper analysis. Fourth, unlike substantive courses which may just rely on one exam at the end, students in an upper-level legal writing course can practise their emerging analytical skills with smaller, ‘bite-size’ writing assignments on the issues presented by the problem that build up to the final written product. Finally, the legal writing course helps students to deepen their analytical skills because they can be required to switch sides.

Emphasis can be placed on ‘teaching in context’ so that struggling students are given a fair opportunity to connect with the material they are to write about. Thus, a legal writing course that is in tune with these issues can provide a more meaningful opportunity for struggling students to learn writing. Moreover, because the students likely engage in some type of legal employment over the summer, they have more developed schemata, and increased motivation, to learn how to express their legal analysis in a competent piece of writing. In addition to teaching in context, emphasis can be placed on how students absorb information. While this may not be possible in the typical first-year legal writing course, responding to students’ different modes of absorbing information can be a central feature of an upper-level course specifically designed to assist struggling students. An upper-level legal writing course can accommodate struggling students’ diverse learning styles and provide a more complete learning experience — one that reaches a more complex level of learning and analysis.

The frequent interactions between faculty and students that take place in a legal writing course, through not just the classroom but in individual conferences and simulation exercises, such as an oral argument, offer ample opportunity to show students respect. Collaboration is also easily achieved in an upper-level legal writing course and is helpful in giving struggling students a sense of power in the classroom and a sense that they are partners in their own education.

Opportunities for inclusion are also abundant in the upper-level legal writing course because the professor can design problems to which students can relate and that raise important social issues. The upper-level legal writing course offers many opportunities to show struggling students the delight the professor has with the law. Finally, the upper-level legal writing course gives struggling students an opportunity for frequent feedback.

It is often assumed that legal writing and academic support go hand-in-hand. As a result, little thought may go into the ways that a legal writing course may actually hinder a law school’s academic support mission. The author’s experiences with legal writing and academic support provide important insight for law schools that have not carefully thought through the ways in which a legal writing course can be useful, or can undermine, academic support goals. The most important insight is that combining legal writing and academic support in the first-year legal writing course can have unintended, negative effects that should be considered when designing an academic support program. These negative effects can be largely avoided by using a legal writing course for more advanced academic support after the first-year.