What Types of Documents Should Law Students Write in Legal Writing Classes?

I am enjoying reading the current issue of the Journal of Legal Education.  In particular, the second article, From Snail Mail to E-mail:  the Traditional Legal Memorandum in the Twenty-First Century, authored by Kristin K. Robbins-Tiscione, has gotten me thinking about the documents we use to teach students in the first-year writing courses.  

Like nearly all contemporary legal-writing programs, our courses are centered on objective writing–traditional research memoranda–in the fall and persuasive writing–briefs–in the spring. Robbins-Tiscione’s research suggests that traditional research memoranda are going out of style in actual law practice.  As Figure 4 in her article demonstrates, students’ perception of the usefulness of traditional memos has plummeted in recent years.  Robbins-Tiscione surveyed graduates of the classes of 1983, 1988, 1993, 1998, and 2003.  Graduates from 1983 through 1998 agreed by large majority (between 75 and 81 percent) that learning to write traditional memos was “extremely helpful” or “very helpful.”  In 2003, though, that number fell to 59 percent.  In 2003, for the first time, a small group of students–3.7 percent–said that learning to write traditional research memos was “not at all useful.

I am dubious that learning to write an office memo is not at least somewhat useful, in any event, because it does force students to use legal authorities to analyze a problem, and to articulate the analysis in writing.  I find myself wondering, though, whether I should be moving towards teaching the more informal document formats that are becoming more common in practice, including long, substantive emails.  Robbins-Tiscione speculates that the rise in the use of email probably accounts for the decline of the traditional formal office memo.

I would love to hear thoughts about whether the formal legal research memo is on its way to becoming extinct, and about what sorts of documents students should write in legal writing courses.

This Post Has 6 Comments

  1. Andrew Golden

    I don’t know where these respondents in these surveys are working, but if it’s a place where they have no need for memo-writing, sign me up!

    Let me say this: I’ve spent internships in law school working in a misdemeanor court at the courthouse, at a non-profit doing criminal defense, and now at the Public Defender’s Office. While short case briefs have been requested when the turn-around time is narrow (i.e., when it’s 9 a.m., we’re in court at 1:30, and we need to have some basic precedent to cite), guess what format has been DEMANDED, not requested? That’s right: the memo. In fact, the motions I write for the PD’s office aren’t even simply motions, but rather motion-memos so as to support our arguments with thorough case law research.

    To be honest, aside from my Appellate Writing class, I haven’t had to write a brief . . . . well, EVER in my practical work. So, I mean, I’d root for not having to write briefs in LWR classes, as the knowledge hasn’t been as useful in my daily work. But clearly that’s ridiculous to suggest, because every other type of law regularly uses briefs! Actually, if you want an honest opinion as to what other documents we should focus on, I’d absolutely suggest things like basic civil and criminal motions. I mean, they’re not tricky, per se, but it takes a whole other skill set to draft a motion that gets your point across while being crisp and concise. I think some practice in class on that topic would have been useful, even if it were just a lecture with examples as opposed to a full paper assignment.

  2. Tom Kamenick

    My first-year writing classes here at Marquette were distinguished by doing our own research – first semester we were given cases and told not to do outside research, second semester we had to research sources ourselves. Both semesters had one brief and one memo.

    Like Andrew, I would like to see some time spent on drafting court documents. My first summer legal job had me drafting quite literally five times as many motions and objections as memos and briefs (bankruptcy).

  3. Jessica E. Slavin

    I agree with both of you that some drafting practice would be a good addition to the legal writing curriculum. My first reaction to your suggestions to add motion drafting was to think, more litigation documents?! What about the non-litigators? But just as memos are good research and analysis practice even for those who won’t write them in practice, motions are good drafting practice in any event. We can’t hope to prepare students for each individual work context that will confront them in practice. I guess we need to select assignments that have help students learn the most widely-used skills.

  4. Peter Heyne

    During my trial court judicial clerkship, I had to read briefs from both sides and then draft a bench memo on various motions. I found that experience at first somewhat daunting, but then very enlightening: e.g., I quickly learned that advocates often cherry-picked their authorities, even completely misciting/misquoting the record, state and federal precedent, statutes, et cetera.

    Thus, is there is any way to work in a short bench memo into Legal Writing II (a good way to tie together LAWR I predictive with LAWR II persuasive writing)? Even those who do not plan to clerk or litigate could benefit.

    Also, I found one of the most challenging (though I hope also most practical) exercises to be writing a final exam essay as a Client Counseling Letter (i.e., explaining complex doctrines and giving very concrete legal advice in plain English to a non-legal reader who is no doubt very emotionally/personally, as well as financially, invested in the answer that he or she “wants” to hear). Kudos to Prof. Madry from my Property class for this idea.

  5. Jessica E. Slavin

    The bench memo is a really good idea, for the reasons you’ve stated. I’m going to think about whether I could work one into LAWR 2.

    I think a client letter is also a fantastic learning exercise, and I have tried to work one into LAWR 1 now and then. I’m glad to hear Professor Madry has done so in his class!

  6. Chris King

    I think a move away from research memos to more informal documents would be a mistake. In my opinion, bad briefs, bad e-mails, bad “quick memos” all result from bad fundamental legal writing skills. The best place to develop good fundamental legal writing skills is in a research memo. If you cannot structure a legal argument in a research memo and make a neutral (non-persuasive) evaluation of the law at issue, there is no way you can expect to do so in a shorter, informal document.

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