How do you built a curriculum for teaching the next generation of legal professionals to write? Professor Jan Levine has spent his career wrestling with this exact question. Over the last few decades he has refined his methods to distill the most effective strategies and share them with students and educators alike. Here's what he's discovered about how new legal writers learn to write effectively.
You’ve helped develop several legal writing programs over the course of your career. What are the most fundamental elements that go into a legal writing program?
The two major elements to a first-year legal writing program (and courses) are the curriculum and the teachers. The challenges for curricular design are many, and the results often reflect the attitude of the school administration and faculty towards the teaching of research and writing; and the status, numbers, and character of the teachers. Writing is a labor and time-intensive task, and the teaching of writing is as well, which is why most other faculty members do not want to teach writing. The corollary is that at many schools they harbor disdain towards the course and teachers, perhaps because they are graduates of elite schools that have paid little attention to writing instruction, and at many schools the writing teachers are not tenured and are in second-class status positions. But the time and effort needed to teach writing well (or even passably) mean that at every law school the writing course “sections” are smaller than any other first-year course and so there are usually more teachers of writing than teachers of any other required course. While students can deal with two different teachers’ approaches to a contracts course, problems can arise when there are six or a dozen different sections of the writing course and the students experience vastly different pedagogical approaches, number and length of writing assignments, varying degrees of feedback, and conflicting grading schemes
The curriculum at each school reflects these pressures. The foremost issue in curricular design is whether there are commonalities in the different teachers’ courses. The traditional model of a director-led program initially reflected the way in which most schools employed relatively large numbers of inexperienced short-term faculty to teach the course (ranging from upper-level students to adjuncts to full-time teachers on time-limited contracts). As teachers gained job security and experience, there was less of a need to have everyone in lock-step, guided by an experienced teacher. However, even with experienced teachers there are many reasons for a curriculum to have common features in place so that students receive arguably similar instruction, on comparable tasks, with a grading system that is consistent. Legal writing courses differ from “doctrinal” or “casebook courses,” even in the era of the concepts of formative assessment and “flipped classes” being called for in those other courses. Legal writing courses always employed those techniques.
Some say that legal writing is its own “discourse community.” What does this mean to you? How might that make learning to write well more difficult?
Legal writing courses provide students with a concrete and hands-on introduction to a new discourse community, as they learn new ways of thinking, reading, and writing. First-year students are learning a new language and a new way of thinking, and they often find it very frustrating. More and more, students come to law school without the depth of analytical writing experiences that were more common in the past. A well-structured legal writing course does more than any other law school course to guide students to communicate in the ways lawyers and judges communicate with each other and with the rest of the world. Much as one learns a new language via immersion, a legal writing course plunges students into the new discourse community’s pool, but the curriculum and course provide opportunities for a teacher to start students at the shallow end and gradually move on to the deeper end of the pool without drowning.
What do you think law schools get right and wrong about teaching writing?
Modern high-quality legal writing curricula integrate legal research instruction with legal writing instruction, as opposed to a separate “bibliographic” approach to teaching research (that’s been referred to as the “search and destroy” method of teaching research without the research leading to a resulting written product using the fruits of research, showing the writer’s analysis – which, of course, is not what lawyers do). Writing is a recursive product, so students should be asked to produce outlines and multiple drafts, with instructor feedback and revision at every stage as an integral part of the learning process. And it usually takes at least three efforts for students to begin to achieve any minimal level of proficiency in writing, and the tasks need to build upon each other during the progression of the course(s). Students need intensive written feedback on their writing, the opportunity to meet with a teacher to go over those comments and suggestions, and they should then revise a written product after the review and conference stage, for yet another draft that will be subject to review.
The staple products of a legal writing curriculum are the office memorandum and an appellate brief, both based upon extensive research. Law students and most young associates will be asked in a summer job to conduct research and provide a supervising attorney (or judge) with a memo-like written analytical piece. And the appellate brief teaches students how to communicate with the only other audience that they learn about in law school courses – the appellate judge. That communication is usually accompanied by an oral argument. Teaching objective/predictive and persuasive writing via those vehicles provides students with skills needed to do any similar task in the future. And the appellate brief is far more of an intellectual and jurisprudential document than a short document submitted to a trial judge in support or opposition to a motion.
Legal writing programs at many schools, however, have recently been adding other “lawyering skills” to the curriculum, such as client interviewing and negotiation. But design of a curriculum is a zero-sum game, so when other topics are inserted into a writing class, there is bound to be less attention paid to writing. With increasing numbers of law students coming in with poorer training in research and writing, as well as critical reading and thinking skills, those additions are likely to further reduce the abilities of students to do what they need to do in all their courses and in employment. Those other skills should be taught in law school, but in upper-level courses. After all, few to no summer clerks after their first year of school will ever be asked to negotiate anything with opposing counsel or interview a client (other than to fill out a simple intake form).
How does the student-teacher relationship affect the learning process?
A well-designed curriculum maximizes the opportunity for early and frequent contact between the students and the teacher, which essentially provides a fertile ground for growing a bond between them. The personal relationship of a teacher with a student is the key to success. While such a curriculum can provide the greatest probability of a successful course, the most important factor is the character of the teacher. Great legal writing teachers view their career as a calling, not merely a job. They do all they can to improve their students’ writing, to reach them and to motivate them. When the teacher is seen by the students as a mentor and dedicated coach, and not a mere impersonal assessor and grader, miracles can happen. When schools hire and retain a teacher who views the job as a stepping stone to a “real” law school faculty position, or as a convenient less demanding gig and an escape from the demands of practice, the school has failed the students and the profession.
How has the way you design a new legal writing program or resource changed as you’ve gained experience? How has it stayed the same?
I learned early that intensive individual feedback is crucial to students and to the success of a course, but that providing students with grades on assignments before a product written at the end of a semester is counter-productive to learning. After all, every student’s learning curve is different, and what matters is where one is at the end of a race. Early receipt of graded feedback has the effect of turning off students who don’t do well at the start, while providing a false sense of security to those who do well at the start. So writing courses need to recognize that mistakes are an inherent part of learning, but early mistakes should not penalize students for doing exactly what they have to do when starting out. Students should learn from mistakes and not suffer from them unless they are repeated.
Students also need to see examples of work-product on the very tasks they’re being asked to complete before they submit work for review. That means showing them excellent, mediocre, and poor samples written by students in previous years on the very assignment upon which they are working, having them critique those samples “live” in class, and learn how any piece of writing can be improved, so they take those lessons home and employ them on their own work.
Perhaps the key design element in student instruction is organization, both small-scale and large-scale. Many students have not had any exposure before law school to the importance of small-scale writing structure (sentences and paragraphs) and to large-scale organization to convey detailed analysis.
Should writing be taught differently to lawyers depending on if they wish to become litigators or corporate lawyers?
The first-year writing instruction should be uniform and focus on the basics of conducting research and conveying analysis to a law-trained reader in objective/predictive and persuasive forms. After all, few disputes become lawsuits, fewer go to trial, and even fewer get appealed. But all lawyers need to employ those basics in all that they do. Upper-level courses can best address transactional writing such as contracts and estate plans, legislation and regulations, and correspondence; and litigation-focused writing such as pleadings and discovery. All those contexts for writing require more substantive knowledge and specialization.
What makes for good legal writing? Is it different from stereotypical “legalese?”
Good legal writing is writing that does not appear to be “legal.” Good writing—of any kind—is clear, concise, easy to understand, and elegant. “Legal writing” has been seen historically as the very opposite, as opaque, antiquated, verbose, and stilted. Some of that is because many lawyers are simply not good writers, and some is due to the profession’s reliance on “boilerplate” language. That boilerplate language in legal documents has resulted from a shared meaning developed over time as it has been reviewed by courts and assumed a specific meaning and interpretation.
This boilerplate is particularly found in transactional documents such as property conveyances, testamentary documents, financial and corporate documents, and contractual terms. Lawyers do not like unintended ambiguity and we tend to rely on time-tested and accepted phraseology, despite it appearing strange and antiquated to laypersons.
How does the public view legal writing? What does that mean for the justice system?
In the litigation context, laypersons assume that lawyers working as advocates overstate claims, cast aspersions on opposing parties, and use overblown language. Of course, that is what people think of the work of opposing counsel, not that written by their own lawyers. This view of litigation-focused legal writing tends to be more prevalent at the trial level than at the appellate level, but in the past two decades the divide between legal advocacy and partisan politics has become blurred in the public’s mind, and that perception has worsened as the public has lost faith in the belief that appellate judges decide matters based on principle and not politics. Judges are neither historians nor scientists, but when they act and write as if they are, they damage the institution’s stature as one of the bedrocks of our democracy.
Lawyers who write well have tremendous power to convince, to forge the future’s view of an agreement or the law, and to literally define reality. Law, particularly in our common law system based on the writing of appellate judges, is a literary profession, and we need to be cognizant of what others wrote in the past and how what we write has a life of its own. Lawyers working in legislatures and agencies who craft statutes and regulations all too often fall prey to the temptations or requirements of politics when they appear to address and resolve a problem while actually “kicking the can” down the road by intentionally using ambiguity, and leaving it to other lawyers and judges to fill in the spaces or interpret and apply poor language (whether it was intentionally crafted as such or not).
How important is it for a legal writer to think about their audience? Does it matter whether you’re writing for a layperson, another lawyer, or a judge?
Lawyers who are good writers appreciate that they are writing for one or more specific audiences. That understanding of a lawyer’s mission to satisfy the readers’ minds and needs is something that is often foreign to law students and to new lawyers. Students and young lawyers rarely have experience in understanding the diverse audiences for a lawyer’s writing. For example, most law students have rarely written any correspondence other than text messages and short e-mails, and that lack of experience is revealed in their own job application letters, which are focused on their own needs for job as opposed to a law firm’s or judge’s needs for someone to work for them and perform well. Law schools ask new students to imagine writing for only two audiences because of the contexts of their academic training: the first is an appellate judge who has written the decisions that are read by law students, and the second is a supervising attorney reading an office memorandum. Legal writing teachers labor to provide a substitute for those audiences, and apart from clinicians in upper-level courses little training is provided to law students on writing for diverse audiences outside of their experience and imagination. Most other law professors simply do not have much to do with student writing outside of grading essay exams and supervising scholarly papers, which are, ironically, the two audiences a practicing lawyer is almost never going to deal with. It is not until summer clerkships or the first few years of practice that a new legal writer actually experiences other real-world law-practice audiences’ needs first-hand.
Where should new lawyers look for writing mentorship?
In law practice, unfortunately, many new lawyers will receive little effective training in becoming better writers. From what I have heard from former students, most experienced lawyers no longer devote much time to mentoring the writing of new associates, and simply rewrite documents drafted for them or force their own flaws and foibles about writing onto their underlings. Good judges are better writing mentors of their clerks because they see a wide range of good and bad writing from lawyers, and their own writing is exposed to more review and critique than that of a law firm partner.
Why is it so hard to edit your own writing? Is it worthwhile? What should legal writers do to ensure they produce high value writing?
Effective editing of one’s own writing requires the experience of working with a good editor or teacher. Law students often come to school having little to no experience in writing and revision under the guidance of a college professor, unless they went to the increasingly rare college that valued such training. Writing on-screen has added unfortunate hindrances to the development of good writing. When we write on screen we see only part of a page, the text looks attractive, and the full document’s analytical organization and structure is lost unless printed and carefully reviewed and revised.
Furthermore, good writing requires a conscious attention to structure from the start, and the need for a working outline is often unappreciated by new legal writers. Outlining is too rarely understood or even taught in college and law school, and the editing and reorganization of a document while it is in the process of being drafted is something that new writers, legal or not, are often incapable of doing on their own without help from a dedicated teacher or a skilled lawyer. Writers of fiction carefully plan the worlds of their novels, knowing where they are going and how to get the reader to that destination. Writers of history are always conscious of temporal structures. Scientists, mathematicians, and musicians are conscious of the structure and organization of their theories, proofs, and pieces. Lawyers need to do the same for their written arguments, their decisions, and their rule drafting.
About Jan Levine
An expert in the field of legal writing and research, Jan M. Levine has been teaching law for more four decades. Professor Levine has taught and directed legal writing programs at five different law schools. He is a Professor of Law at the Thomas R. Kline School of Law of Duquesne University, and previously taught at the law schools of Temple University, the University of Arkansas (Fayetteville), the University of Virginia, and Boston University.
A graduate of the Boston University School of Law and the State University of New York at Albany, he is a nationally recognized scholar who has published more than 30 articles on legal research and writing; two of his most recent accomplishments were contributing to the second and third editions of the ABA Sourcebook on Legal Writing. He has presented 50 sessions at national conferences on legal research and writing.
Levine was the founding president of the Association of Legal Writing Directors (ALWD); served on ALWD's board of directors; was a member of the board of directors of the Legal Writing Institute and the board of directors of SCRIBES, the American Society of Writers on Legal Subjects; and served as chair and member of the ABA Communications Skills Committee.
In 2023 Levine received the Association of Legal Writing Directors Marjorie Rombauer Award. This award, the most prestigious in the field, has been presented by the Association of Legal Writing Directors only four times since its inception in 2000. The award “salutes a person who has contributed significantly to the field of legal writing: by education about the importance of legal writing; by published scholarship that advances the teaching of legal writing and the understanding of its underlying principles; by contributions to national legal writing organizations; by contributions to individual legal writing programs; and by efforts to improve the status of legal writing faculty.”
In 2014 Levine received the Thomas F. Blackwell Memorial Award for Outstanding Achievement in the Field of Legal Writing, which is presented annually by the Association of Legal Writing Directors and the Legal Writing Institute to a person "who has made an outstanding contribution to improve the field of Legal Writing by demonstrating an ability to nurture and motivate students to excellence, a willingness to help other legal writing educators improve their teaching skills or their legal writing programs, and an ability to create and integrate new ideas for teaching and motivating legal writing educators and students."
Prior to beginning his full-time teaching career, he served the Commonwealth of Massachusetts as assistant general counsel and assistant regional counsel for the Department of Social Services, litigating child protective services cases, and served as deputy general counsel for the Office of Children, providing systemic child advocacy and licensing childcare facilities. He began his career as a lawyer as a staff attorney at the Boston University Center for Law & Health Sciences, and at the Boston University Health Policy Institute, working in the areas of the rights of persons with mental and physical disabilities, the rights of older Americans, and health care planning.
