In Part I: The Rise of Written Persuasion, I outlined the history of written advocacy in three jurisdictions — England and Wales, Australia, and America — to show why good written advocacy is vital to the modern lawyer. Despite the importance of good legal writing skills, many lawyers still argue cases badly in writing.1
In this second article, I explore why lawyers write badly. I suggest the problem (and the solution) may relate to the way law schools and postgraduate courses teach legal method rather than the way law schools and postgraduate courses teach legal writing.
Commentators have suggested several reasons why lawyers write badly.2
Those reasons include bad habits, historical causes, time and resource pressures, and the way lawyers view themselves. To correct the problem, books and courses on legal writing provide advice on using plain language, forming sentences, linking paragraphs, and so on. These books and courses provide wise advice, yet lawyers still argue cases badly in writing.
So I want to suggest a more basic reason lawyers write badly. Lawyers write badly because law schools and postgraduate courses teach the wrong legal method. How can you write a persuasive solution to a legal problem if you do not have a proper method for solving the legal problem in the first place?3
A. The Problem with the Case Method of Teaching Law
‘A huge gap exists between what is taught and what students are expected to learn in legal research and writing.’4
Under the case method of teaching law, law teachers collect the best cases about an area of the law into a casebook. The teacher assigns students several cases from the casebook to read before class. In class, the teacher asks students for the facts and holding of a case, making sure the students understand the holding.5
Christopher Columbus Langdell, Dean of Harvard Law School, introduced the case method in 1870. It is still the main method of teaching law in the UK, the USA, and Australia. Langdell designed the case method not to help students become better lawyers, but to perform a more scholarly goal: to enable teacher and students to examine a case as the raw material of a new science, the ‘science of law’.6
In theory, the case method regards the holding of a case as less important than the way the court gets to the holding:
‘Under the case method students were not only to derive the holdings from the cases but were critically to appraise the application of the legal principles involved, both to the given situation and to other possible variant situations.’7
For example, students might examine the policy considerations that persuaded the judges to reach a holding.8
In theory, studying cases would this way enable lawyers to apply the doctrines to new situations. But, in reality, students too often regard the cases as:
‘authoritative solutions which they need only read and absorb; each case becomes an end in itself, and the educative process stops at the very threshold of its most significant stage.’9
Even at its best, the case method teaches students to think like lawyers by having students watch judges, lawyers, and law professors think like lawyers. In other words, the case method shows students good role models to emulate.10
Students see good lawyers present good arguments to good judges who write good opinions, and they see a good law teacher dissect those arguments and opinions.11
When those students become lawyers and must explain and criticise a reported case, ‘we can expect them to do a terrific job. Unfortunately, not many lawyers spend much of the working day in this sort of activity’.12
Instead, lawyers spend most of their time trying to solve problems. And most people learn how to solve problems by practicing. The case method may teach students some problem-solving, but only so far as you can learn by watching. And watching is different to doing.13 So:
‘The case method of teaching adopted in most law classes … only takes students some way towards the development of skills of problem solving in practice. Students learn the law but do not get experience applying the law.’14
To fill the gaps, some scholars advocate the ‘problem method’ of teaching law.
B. The Case for the Problem Method of Teaching Law
‘Since the main purpose of legal education today is to train lawyers … we should adopt the problem method.’15
Under the problem method, students learn law by applying the law to concrete legal problems that a lawyer might face in practice.16
In class, students and the professor still discuss cases as they would with the case method. Students must understand the cases to analyse the problem. Students keep the benefits of the case method.17
But, under the problem method, students must also:
‘analyse a new complex set of facts, organize the issues into a logical framework, read the relevant authorities with an eye towards resolving the client’s concerns, and apply the authorities to the facts of the problem. In class, the professor guides the discussion around these tasks.’18
When I think about the students that my legal research company has recruited and trained over the years, I agree that the more experience a student has with the problem method, the better the student is at real-world legal problem-solving. I agree with LH Landman19 that the problem method better replicates the way practicing lawyers think when confronted with a new problem. The problem method, when taught outside discrete subjects labelled ‘torts’ or ‘contracts’, helps to dispel the idea that the different areas of the law exist in water-tight compartments. The problem method calls on more than precedent when solving problems, adding reason and extra-legal knowledge (such as knowledge of history and policy) to the task of legal problem-solving. And the student learns to address and persuade their audience.
The problem method has naturally led its supporters to develop various problem-solving models. In the next article in this series, I will describe and evaluate some of these models.
Footnotes
1 See, for example, the references I cite at fn72 in The Rise of Written Persuasion. 2 See especially Christopher T Lutz, ‘Why Can’t Lawyers Write?’ in Priscilla Anne Schwab (ed), Appellate Practice Manual (1992) 167.
3 I thank Christopher Enright (see www.legalskills.com.au) for helping me to clarify my thoughts on this topic.
4 Maureen F Fitzgerald, ‘What’s Wrong with Legal Research and Writing? Problems and Solutions’ (1996) 88 Law Library Journal 247, 255–6. Note also Linda Morton, ‘Teaching Creative Problem Solving: A Paradigmatic Approach’ (1998) 34 Californian West Law Review 375 (‘There is an identified gap between legal education and legal practice.’).
5 Myron Moskovitz, ‘Beyond the Case Method: It’s Time to Teach With Problems’ (1992) 42 Journal of Legal Education 241, 244.
6 Myron Moskovitz, ‘Beyond the Case Method: It’s Time to Teach With Problems’ (1992) 42 Journal of Legal Education 241, 241.
7 Lawrence M Friedman, A History of American Law (2 ed, 1985) 618 quoting Association of American Law Schools (1942), quoted in Myron Moskovitz, Myron Moskovitz, ‘Beyond the Case Method: It’s Time to Teach With Problems’ (1992) 42 Journal of Legal Education 241, 245.
8 Myron Moskovitz, ‘Beyond the Case Method: It’s Time to Teach With Problems’ (1992) 42 Journal of Legal Education 241, 244.
9 Lawrence M Friedman, A History of American Law (2 ed, 1985) 618 quoting Association of American Law Schools (1942), quoted in Myron Moskovitz, Myron Moskovitz, ‘Beyond the Case Method: It’s Time to Teach With Problems’ (1992) 42 Journal of Legal Education 241, 245.
10 Myron Moskovitz, ‘Beyond the Case Method: It’s Time to Teach With Problems’ (1992) 42 Journal of Legal Education 241, 244.
11 Myron Moskovitz, ‘Beyond the Case Method: It’s Time to Teach With Problems’ (1992) 42 Journal of Legal Education 241, 245.
12 Myron Moskovitz, ‘Beyond the Case Method: It’s Time to Teach With Problems’ (1992) 42 Journal of Legal Education 241.
13 Myron Moskovitz, ‘Beyond the Case Method: It’s Time to Teach With Problems’ (1992) 42 Journal of Legal Education 241, 246.
14 Patrick Keyzer, Legal Problem Solving: A Guide for Law Students (1994)9
15 Myron Moskovitz, ‘Beyond The Case Method: It’s Time To Teach With Problems’ (1992) 42 Journal of Legal Education 241, 241.
16 Bernard J Ward, ‘The Problem Method at Notre Dame’ (1958) 11 Journal of Legal Education 100, 100; Myron Moskovitz, ‘Beyond the Case Method: It’s Time to Teach With Problems’ (1992) 42 Journal of Legal Education 241, 107.
17 Myron Moskovitz, ‘Beyond The Case Method: It’s Time To Teach With Problems’ (1992) 42 Journal of Legal Education 241, 258.
18 Myron Moskovitz, ‘Beyond the Case Method: It’s Time to Teach With Problems’ (1992) 42 Journal of Legal Education 241, 250. Students may have to submit written answers to the problem.
19 JH Landman ‘The Problem Method of Studying Law’ (1953) 5 Journal of Legal Education 500, 505–6.
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