Psychotherapists have a technique they sometimes use with patients in the grips of the unarticulated and unexamined. They have the patient articulate and explore their worst possible imaginable fear. There is, it seems, something therapeutic in naming and facing the fears that lurk in the margins of consciousness. I wonder whether a similar naming of fears might have therapeutic value for legal writing and whether the story of legal writing might take on a different shape if we attended more fully to these fears (of therapeutic concern). Legal writing, befitting its solid, central, traditional bearing, has a way of turning away from its shadow (as we all do, but more likely to do when we see ourselves as solid, productive citizens). Legal writing, takes its self-assured cue from law, a discipline and set of practices more determined to maintain the fearlessness of boundaries, than to cross boundaries and confront the fear.
There is, by students, much talk about legal writing. And what do they say of it: It is important but distasteful; mechanical, dry, and boring; narrowly focuses on writing a lawyer might be expected to do in a big law-firm; involves arbitrary preferences of teachers unable or unwilling to justify their demands; encourages learning to write by formula; and could be taught better.
While I would not turn to law students for a cure for what ails legal education, in contrast to some colleagues, I take seriously the way students talk about their education. I realize the need for caution in responding to student complaints. They sometimes blame the doctor for the pain of treatment. It is one thing to know you are sick and ailing, another to know what medicine might bring relief.
Student complaints parallel my own concerns about the legal writing enterprise. First, it is considered a specialized form of writing, taught in stand-alone courses, by teachers who teach little or nothing other than legal writing, we create for legal writing (as we have for legal ethics) an enterprise that cannot imaginatively sustain itself. Secondly, legal writing conceived as a "technical" skill to be analyzed, broken-down into component parts, and taught by way of dissection and reassembly may teach the mechanics, but in doing so we leave students with an impoverished view of writing, which is always as much an imaginative--literary, rhetorical--activity as it is a mechanical one.
With student "distress" signals floating ashore like messages in a bottle, students may not be saying that legal writing is taught badly, but that too much is at stake, too much of their identity, too much of the self, too much of their phantasies for lawyering, to have this central performative aspect of their professional life turn on an instrumental, mechanistic activity like legal writing. If legal writing is one of the "core" skills, and the skill entails a lifeless, soulless endeavor, then students may know something is wrong and confuse the disease in describing its symptoms. Which raises a question: Can legal writing be anything, is it anything, other than a form of technical writing? Is the story of legal writing to be told as one of mechanical, technical, specialist achievement?
To conclude that legal writing is painstaking work, requires discipline not enjoyable when imposed, and must be approached in a methodical manner, we have drawn a step closer to the fears that shadow legal writing. Without a better sense of the fears that grip us, we will tell comforting "cover stories" about legal writing. (Would you like to know more about the legal writing program at West Virginia?)
I want to befriend the shadow side of legal writing and see how my fragmentary propositions might represent the present fear and loathing of legal writing. I imagine the exercise as something a novelist might do, putting or having a character undergo the most extreme circumstances, to see who the character may turn out to be.
Legal writing is not glamorous; it has a status akin to housework.
Legal writing is hard work for which it should be honored. Like most hard work, it can be misunderstood. If one isn't cautious, what was hard begins to look like toil, plodding incrementalism, tasks done and repeated, for which one is rewarded by slow, willed acquisition of habit. The Greek god Sisyphus dominates the life of the legal writing teacher and is a threatening menace to the student. Who would, by human choice, move the rock up the hill, knowing it must be moved up the mountain again and again? Surely, this must be a form of eternal punishment! This God Sisyphus, the student says, I can live without.
Legal writing, the unglamourous, takes place in a realm of toil. For many (most?) it involves the most unpleasant of tasks, like separating lentils from peas. Legal writing, unloved, with tasks that test us, is the Cinderella of legal education, forever waiting to be discovered, its true value recognized and proclaimed.
Legal writing is the space or terrain in/on which thinking is concretized--idealists confront reality, chaos becomes order. Legal writing is offendingly hard because it represents Reality, the force that stands against the subjective, willful, fanciful, dream of the student lawyer/warrior/champion of lost causes/skilled hired-gun. Most of us don't like to be backed into a corner by reality. The reality of legal writing is no more welcome than the punishment of Sisyphus.
There are still other gods that demand our allegiance in legal writing. Consider Apollo and his world of order, form and format. In the hands of legal academics, Apollo's order becomes the structured, every sentence in its place, every argument a set consisting of issue, rule, authority, and conclusion (IRAC). Legal writing is the triumph of seriousness over play (Apollo over Dionysus), the known over the unknown. [A Note on the Greek God Apollo]
Legal writing, ruled by a logic of linearity, creates a path straight as a ruler--no diversions, surprises, or reversals. Diverge from the path and you are exiled. In legal writing, objectivity triumphs mightily, totally, and finally over subjectivity. In the exile world of legal writing conformity is a virtue, creativity suspect, humor forbidden, voice mute. Legal writing says no to all the gods; there is nothing sacred here, you have entered the world of the profane. But there is always some god or other that we worship: Legal writing worships at the altar of instrumentalism; it claims no value for itself, its only purpose is to serve, to make an argument adapted to the cause of another.
Legal writing, for law students, returns the student to an activity claimed to have already been mastered. For many, however, legal writing does not offer an opportunity to work again with that which has been mastered, but the unwelcomed, forced return to the scene of an accident repressed from memory. When their mastery is questioned or becomes suspect, students become defensive:
If it takes denial--"I don't have a problem with my writing"--to get to the sweet promised-land of success, then denial it will be. While writing, legal and otherwise, evokes defensiveness, and then outright fear and loathing, it is a central, core, performative tasks, and cannot, without massive effort and energy be denied, subdued into silence by the success of having gotten oneself in law school.
Legal writing, seen in its most unfavorable light is flat, technical, and formulaic. Its favorite color is gray. Its neurotic styles: depression, manic depressive, and denial. Still other students, openly critical of legal writing, troubled by the implicit lessons it teaches find it not just gray and depressing, but life-denying and soul-less.
Legal writing reminds, again, and always, of brute necessity. Confronted with the necessity of writing, students lace necessity with thick strands of alienation. Legal writing becomes alien and unloved even as it becomes familiar. By figuring out how to write well enough in matters of law, avoid embarrassment, and pass law school courses, the student survives. To make this volatile mix of necessity and alienation work, the student needs a phantasy--the real life of lawyering lies elsewhere, beyond the toil of legal writing. Students of law vest their dreams and hope of lawyering in an escape from legal writing, not from its mastery.
N1. This commentary on legal writing pedagogy is drawn from a larger essay. [See James R. Elkins, What Kind of Story is Legal Writing?, 20 Legal Stud. F. 95 (1996) The article was written for a symposium on "the new legal writing scholarship" edited by Philip Meyer (Vermont Law School), whose writings helped frame my own thoughts about teaching legal writing.]
N2. Legal writing instruction plays an increasingly important role in legal education, and the work of our colleagues who specialize in this area of teaching deserve attention, scrutiny, praise, and criticism. There has been an exciting evolution in teaching legal writing in the past decade (dampened by the conditions under which the best legal writing teachers work) and a significant "greening" of legal writing scholarship. By "greening" I do not mean the growing specialization and professionalization of this field of teaching, a movement found in the appearance of conferences, workshops, and journals specifically devoted to legal writing. By "greening" I mean the movement from talking about legal writing programs to talking about writing and the linkage of legal writing to composition studies and other disciplines and theoretical enclaves such as literary criticism and the cognitive learning theory. The movement is best exemplified in the writings of Teresa Godwin Phelps, Elizabeth Fajans, Mary Falk, Christopher Rideout, and Philip Meyer (guest-editor of this symposium).
N3. Granted a central place in the curriculum, mind-numbing tasks, and questionable faculty status, the status of legal writing instructors in the hierarchial world of legal education plays a significant role in legal writing pedagogy. We visit the fate and punishment of Sisyphus upon teachers of legal writing. We might well expect them to become num, overwhelmed by the tasks they undertake. Each new semester reenacts the punishment, a fate to be eternally endured. Is this not the fate of some vengeful god who favors the profaneness of terminal contracts (no secure tenure life for these folks), overcrowded classrooms, and slights of every sort by the royal insiders who imagine themselves doing the "real"/priestly work of legal education. With teachers of legal writing subject to the degradation of appointed, paid, servitude, how can we expect young legal writers to develop (from their teachers) a sense of fluency, literacy, curiosity, fascination, and passionate involvement in the craft of legal writing?
But in these brief remarks, I have assumed much and spoken for those who know quite well how to speak for themselves. They need no spokesman, but a friend or two can't do all that much harm.
N4. My impulse, in taking up my own investigation of legal writing pedagogy, was to gain some first hand knowledge by observing how my legal writing colleagues went about their teaching. Fearful of what I might find, I did not pursue this possibility. While my colleagues might well have had sufficient confidence to allow me into their classes, I feared that I might find their teaching problematic and in writing about what I found would betray their confidence and kindness in extending to me an invitation to observe their teaching. Journalists and writers seem to have developed an ethic that allows for this kind of betrayal, I did not have the stomach for it.
There was, of course, another possibility. My observations might have led to the conclusion that the present teaching of legal writing was acceptable, adequate, or, I might have found it less than inspiring but no less imaginative than other forms of teaching I have witnessed. I can't rule out the possibility that I would have found my colleagues teaching more than adequate, indeed admirable, perhaps inspired, even heroic. Based on my relationship with the colleagues involved, and my regard for their prodigious work and active involvement in the intellectual life of the law school (what little it might be said to have), I might well have been far more impressed by their teaching than they or I would have thought possible. Even so, I was reluctant to learn what I would be precluded from disclosing. It was not that I suspected my colleagues to be doing badly what they had set out to do, but that in taking up legal writing (with all its conventions) they had fallen prey to some monster which set loose would taint the production of every text it touched.
N5. Historically, the academic writing about legal writing pedagogy has been far short of anything we might call scholarly. Upon examination, it turns out to be an odd kind of local history--largely comprised of institutional program notes with a nod to geography: this is what we do when we teach legal writing at Utah, Kentucky does it this way, we have tried this approach at Vanderbilt, West Virginia has now tried a slight (ever so slightly) new approach. The writing about legal writing pedagogy suggests that law teachers have been far more obsessed with programs (programs attached to particular schools) than the substance of those programs, or whether they actually work. More troubling, we find that in these purported "new approaches" to legal writing is little thinking about the person who is to do the writing. Legal writing programs seem to be concerned with everything but the person as writer. In the story of legal writing, persons are obliterated, while the writing is programmed.
Robert Scholes has made a similar observation about the "institutionalization" of English teaching:
The only narrative impulse in early legal writing scholarship has been the naming of the place (the school/university) in which legal writing takes place. There is, as a confirmed narrativist knows, a story to be found in this dry-bones, institutional history of legal writing programs, but it would take the patience of Job and a fertile imagination to make of it a story anyone would be willing to hear.
N6. Stanley Fish, in contrast to the perspective presented here, is a proponent of the proposition that in staying within disciplinary boundaries, we are doing what we must and that crossing disciplines is not an act to celebrate. [See e.g., Stanley Fish, Professional Correctness: Literary Studies and Political Change (Oxford: Clarendon Press, 1995)]
Legal writing is of such fundamental importance in the life of a lawyer that complaints registered against lifeless forms of teaching can be set aside. On the relationship of legal writing and complaints against the teaching of legal writing, I am reminded of the police and the way we deal with complaints of police brutality. We know how important the police are, so important that we are try to overlook the "dirty" aspects of policing. Policing is so important we try to convince ourselves that we can live with the complaints about it.
N7. In the world of legal writing, there is a surface of consensus, conformity, convention, homogenity, and rules. But the surface is a facade. Beyond an apparent ruling sameness of programmed legal writing, there is a sea of contradiction.
The student of legal writing is unlikely to see this inner world of contradiction for several reasons: she is assigned a single text for a course (contradictions are revealed by multiple texts, one text brings out the contradictions of another); assigned multiple texts, the student trains her eye on informtion and how-to-do-it skills in contrast to divergent ways of proceeding (the law student reads in a way that focuses on convergent rather than divergent bases of knowledge); the student has a single teacher rather than being exposed, as a writer, to many teachers; the teacher has no interest in teaching the contradictions but focuses on teaching accepted conventions.