Saturday, November 28, 2009

The origin of verbosity in law-school exams

Perhaps understanding how writing a law-school exam differs from real writing can help students both write the exams and minimize the damage mechanical scoring inflicts, as many lawyers never lose the verbose style law-school exams instill. By law-school exams, I mean the open-ended essay questions that require the student to analyze certain facts by applying classroom law. The professor scores these questions semi-objectively by adding points for answer items matching the grading template.

The greatest legal-writing virtue, Concision, involves knowing what to leave out, but the fundamental rule for passing a law-school exam is to leave nothing implied because, with semi-objective scoring, the grader doesn't infer points. Preparing for exams that strictly penalize gaps improves the reasoning of the weaker analysts, but it harms the Concision of the stronger writers, who have begun to distinguish the implied from the omitted. The fault isn't the nature of the exam questions, the staple of legal analysis, but grading that's too objective, too fine grained, too compulsive in fairness. Why would being compelled to write to this standard, primarily in the first year, cause lasting damage to the aspiring lawyer's expressive ability? Assuming students don't conclude that the absolute prohibition on subtlety governing law-school exams defines legal writing—but who's telling them otherwise—isn't writing law-school exams just another kind of writing, and can't a writer learn to adapt flexibly to write to differing standards?

The objective foisted on the law student differs from the aim of any other kind of writing; yet, it's similar enough to teach interfering habits. A writer ordinarily seeks effect in the reader, whether to persuade, inform, or entertain, but the exam writer is indifferent to his exam answers' success as writing when scoring points at the sub-sub-issue level according to a grader's template. Writing to template rather than for effect, particularly during intellectually formative years, encourages an excessively objective frame of reference and argument aimed at notional proof rather than persuasion, forming a writer obsessed with capturing every detail, not with omitting the irrelevant, uninformative, or unpersuasive.

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