Wednesday, March 2, 2011

Why teachers write badly

Why do we demand excellent writing from practicing lawyers, while we’re satisfied with writing teachers’ mediocre writing? The anomaly raises additional questions. Does it matter if teachers can’t write? If it does, why does no one care? My answers are that it matters, and law schools and their students don’t care because they’re confused about how teaching relates to doing. The conventional wisdom is that teachers needn’t write particularly well to teach fundamentals, but skilled writers obtain better pedagogical results by motivating student improvement.

Legal-writing education needs good writers, who can show rather than tell their students that writing makes a difference, a conclusion few students reach because teachers unable to demonstrate that writing matters limit their horizons. Only large advantages in skill produce noticeably better courtroom results; cosmetic changes, such as eliminating legalese’s remnants, don’t differentiate winning from losing briefs: judges report they receive no assistance from the great majority of briefs. Writing teachers are modest in their claims, but modest writing improvements aren’t outcome determining, as teachers admit when they excuse compromises on quality to satisfy bosses’ demands. Regardless of whether improvements achieved in law school cross the threshold for real-world effectiveness, it’s more important that students, afterward, continue to strive for improvement. Writing teachers, themselves, must cross the effectiveness threshold to convey the significance of writing quality.

Another aspect of writing pedagogy is that students must not only grasp that writing matters but also believe that following the teacher’s suggestions helps. A student has few grounds to think a teacher who doesn’t write particularly well can provide useful advice: if teachers knew how to do it, wouldn’t they? The students, moreover, have a point.

So, what must law schools be thinking? By analogy to the qualifications of professors—not necessarily gifted in applying doctrine—schools justify hiring writing teachers who aren’t writers. Superficially, hiring writing teachers who can’t write seems analogous to hiring doctrinal professors who can’t litigate, but the analogy fails because the circumstances differ. The professors don’t teach litigation, and they are experts at what they do teach, legal analysis. Clinical courses, not doctrinal courses, concern applying doctrinal analysis to litigation, and those courses’ teachers are excellent litigators.

You wouldn’t want a professor shaky on legal analysis for a doctrinal class; you wouldn’t want a teacher lacking trial skills for a clinical class; and you shouldn’t settle for teacher who isn’t an excellent writer for a writing class.

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