Tuesday, September 25, 2007

Student essay: litigation bias

The Litigation Bias

In my experience, the first-year legal writing program at UT Law has a distinct litigation bias. First-year students write essentially three memorandums and, perhaps, a brief depending upon their choices of spring electives. Although there is a lot of material to address in the first-year course, focusing mostly or solely on writing for litigation orients students in a direction that may not serve their personal interests in practicing law. Offering first-year students at least a glimpse into the world of legal drafting may better prepare them to choose courses, summer positions, and internships that suit their long-term interests. My suggestion would be to add to the first-year course a class or two on the concept of legal drafting with examples of types of legal drafting. Such classes might broaden first-year students' perspectives on the options available in practice.

The litigation bias in the first-year legal writing program presumably continues for a variety of reasons. Two of those reasons could be: (1) legal writing geared toward litigation is sufficiently challenging that it requires the entire first-year course to learn; and (2) students have two additional years of law school both to learn legal drafting and to delve into practice areas related to legal drafting.

One argument for the continuation of the litigation bias in the first year is that the process of learning to write a well-crafted memorandum is time-consuming enough to require the full attention of the first-year course. It is true that first-year students face the obstacles of learning substantive law, researching skills, and legal-writing skills simultaneously. Learning memorandum formats and research skills alone, however, leaves out the important legal-drafting component of the legal-writing landscape. It would be possible to have a class or two on legal drafting without detracting from the overall goal of teaching first-year students the fundamentals of memorandum writing. Providing examples of legal drafting in the form of a contract for example would alert students to the concept that practicing law is more than litigation. Moreover, emphasizing that transactional attorneys often write memorandums in addition to legal drafting would encourage students interested in transactional practice areas to continue honing their memorandum-writing skills.

Another argument for the continuation of the litigation bias in the first year is that first-year students have two more complete years of law school both to explore practice areas outside the litigation realm and to take classes oriented toward legal drafting. It is true that summer jobs and other courses in the second and third year allow students to expand their knowledge of what it means to practice law. Often summer internships after the first year allow students to see glimpses of what litigation and transactional practices mean to make better-informed decisions about their future course schedules and long-term practice goals. Not all students have the opportunity to take additional legal-writing courses or experience real-world practice areas through internships. As a result, these students may not realize that transactional areas involving legal drafting are better-suited to their long-term goals. Introducing glimpses of legal drafting into the first-year legal writing course would even the playing field between students, allowing all students to consider transactional practices early on enough to plan their schedules and job opportunities accordingly.

Suggestions for further reading:
Louis Schulze, Transactional Law in the Required Legal Writing Curriculum, 57 Cleveland State law Review 59 (2007).

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