Cobb and Kaltsounis, “Real Collaborative Context”

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.

This Post Has 2 Comments

  1. Andrew Golden

    I’d love to see the collaborative context applied more here. With the exception of my Trial Advocacy class (where you couldn’t very well try cases together if you didn’t know what your co-counsel was doing), EVERY piece of work I’ve had to do has either been:

    (a) “You can not work with or talk to other people, and your work is your own.”
    (b) “You can work with and talk to other people, and you write it together.”

    The problem with (b) is that the end result turns out to be a sloppy mish-mash of writing styles, citation formats, etc; the problem with (a) is that you only see the issue from one perspective. Now, granted, some classes (I’m thinking of AWA here) could arguably have some hybrid of the two. But even there it wasn’t truly collaborative; except for the framework pieces — fact patterns, statements of the case, indices, etc. — each person is working on their own mini-brief. I could never have told you what my partner’s ADA argument was about last year, and he was equally clueless on the FMLA.

    Contrast that to the way I worked this past summer at my fellowship at Centro Legal. When my boss would give me a case to work on, I’d do my research and write a framework for the motion or the memo or whatever it was that I was doing, and I’d get my perspective. But then the UWM pre-law intern would poke her head in to see what I was working on, and I’d start arguing my case to her. At some point, the recent Marquette marketing undergrad would take a break, stop in, and she’d join the conversation. Maybe one of the law school’s clinical interns would be in that day, and they’d join the fray. Sometimes they’d ask me questions about cases I hadn’t fully explained; sometimes they made public policy arguments that came from life experiences I had never had before. Then, when it all died down, I’d go back and keep writing, often times implementing ideas they had (either to bolster my argument or to preemptively counteract theirs.)

    I’ve never understood why the same policy hasn’t been applied at MU Law in more instances. I know some people like working alone, and they should have that option. But as long as we’re all writing our own papers, why should it matter if we discussed the issues ad infinitum before writing? Would it be terrible to see in a paper (in more formal language, of course) “You know, I’ve argued about this issue for the last week with my classmates, and they all think the result should be A, but I’m still not convinced it’s not B, and this is why . . .”? Wouldn’t that show critical thought and an engagement in the material, which is what the goal is anyway?

  2. Jessica E. Slavin

    Thank you so much for your comment, Andrew! I couldn’t agree more. And actually, I permit that kind of “talking collaboration” in my legal writing and appellate ad classes, for the reasons you describe. I don’t think there is any better way to improve your understanding of an issue than talking it over with other informed people. I only wish that more moot court competitions permitted that kind of collaboration.

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