Experiential Legal Writing: The New Approach to Practicing Like a Lawyer

Abstract

Law students engage in various types of “experiential” learning activities while in school, such as clinics and externships, but they graduate without the experience necessary to practice law. This is traceable to a glaring deficiency at most law schools: a writing program that is comprehensive, properly sequenced, and integrated across and throughout the law school curriculum.

First, most graduates have never drafted the documents they will encounter in law practice. Additionally, they have not drafted and re-drafted such documents while also participating in real-world simulations as they would in actual practice. Instead, students graduate having drafted an appellate brief, a contract, and maybe a complaint, and having participated in one or two oral arguments. That is akin to a medical school graduate who has perfect knowledge of human anatomy from the waist up. When a patient is carted into the emergency room with a broken leg, the medical school graduate will stand there confused and unable to diagnose or treat the patient. Law graduates face the same problem. They cannot competently solve legal problems unless they have experience in the all the parts and sub-parts of the dispute resolution process, and grapple with complex facts as real attorneys would in an actual litigation.

Second, law students do not draft litigation and transactional documents in the order that they would draft them in actual practice. They do not understand that good writing is re-writing, not merely revising. Students do not have a practical understanding of the role and purpose that litigation and transactional documents play in the dispute resolution process, or learn to exercise strategic judgment as writers, counselors, negotiators, and advocates. Graduating without a contextual understanding of law practice — and outstanding persuasive writing ability — leaves students without many essential skills.

The authors’ experiential legal writing model has two components: large-scale or cross-curricular sequencing, and small-scale or intra-curricular sequencing. In large-scale sequencing, which is applied in the first year of law school only, doctrinal and legal writing faculty design a cross-curricular hypothetical fact pattern containing legal issues from all first-year courses, and then design sequential writing assignments (and simulations) as they would occur in actual practice.

Small-scale sequencing occurs exclusively in the legal writing curriculum and consists of two subcomponents. First, students receive a multi-issue hypothetical in the first year that is chronologically sequenced and takes students through each step of the litigation and transactional process. In addition, the legal writing programs extend over all six semesters of law school, thus giving students sufficient time to practice and develop their writing skills on a variety of documents. The goal is to produce graduates who are outstanding re-writers, not just good writers, and who can practice, not merely think, like lawyers.

Keywords: experiential learning, legal research and writing, professional competency, Maccrate report, Carnegie report, practical skills

JEL Classification: K10, K41