As I just mentioned, the latest issue of JALWD, which was themed “Legal Writing Beyond Memos and Briefs,” has a number of really interesting articles. Another one I would recommend reading is Tom Cobb and Sarah Kaltsounis’s “Real Collaborative Context: Opinion Writing and the Appellate Process.”
I have experimented with collaboration in the classroom in a number of different ways, for a number of reasons. Most importantly, it seems to me that human beings think better in collaboration. That’s the case for me, anyway. I am able to think more carefully and critically when I bounce my thoughts off of someone else, preferably more than one person. Additionally, lawyers collaborate in practice, and students need practice working in those collaborative contexts. (Especially some students. Come to think of it, so do some lawyers.)
So, anyway, Cobb and Kaltsounis’s article was extremely interesting to me. I have to agree with their observation at the outset, that despite our best efforts,
something about the form of collaboration we typically adopt [in the legal writing classroom] has always produced the sense that collaborative learning has failed to achieve some of its most ambitious goals. Part of the problem is that collaboration is often not as engaging as it promises to be. For all it has to offer, the act of splitting into groups and working together in a room with other people who are working in small groups can seem contrived. Small-group work often seems to supplement rather than complement the learning process. When perceived as a contrivance, it can hinder full engagement with a complex legal problem — making the group’s legal analysis seem more like a classroom exercise than a method for learning sophisticated analytical and rhetorical techniques, or for engaging in jurisprudence. Such artificiality is intensified when small-group work is paired, as it ordinarily is in legal writing classes, with a task like memo writing, which is rarely approached in small groups in legal practice.
To overcome this artificiality, Cobb and Kaltsounis devised a project that engaged students in a realistic collaborative context–pretending to be judges drafting an opinion. My own experience of collaboration among judges, during my year clerking at the Wisconsin Supreme Court, was very similar to the collaboration the article describes in the Oregon Supreme Court and the Ninth Circuit. Pre-argument conferences and bench memos; post-argument conferences; circulation of drafts; comments on drafts; re-circulation and re-comments; circulation of concurrences and dissents; etc.
As they describe in the article, Cobb and Kaltsounis, through a combination of wise choices and good luck, created a challenging but interesting statutory interpretation problem for students to work on, relating to the Washington Department of Corrections’ right to deduct money from inmate trust accounts. Students did some individual work, coming to understand the facts and issues, and considering various statutory interpretation approaches. “Forcing students to commit early to an interpretation primed them for vigorous debate in the next stage of our project, which involved having students draft a collaborative judicial opinion or opinion set.”
I imagine so! Having just completed an interesting statutory interpretation project with my own fall semester students, I enjoyed reading about how the students’ analysis was challenged and deepened through the collaborative context Cobb and Kaltsounis created. Read the article; it’s inspiring.