Thursday Thinkpiece: Bowman & Brodoff on Linking Legal Writing and Clinical Learning Through Transference
Periodically on Thursdays, we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.
Mary Bowman, Director of the Legal Writing Program and Associate Professor of Law at Seattle University School of Law
Lisa Brodoff, Director, Ronald A. Peterson Law Clinic and Associate Professor at Seattle University School of Law
Forthcoming in the Clinical Law Review, Spring 2019
Excerpt: Abstract and Section 2
[Footnotes omitted. They can be found in the original via the link above]
Why do highly competent and hard-working law students struggle to apply what they learn in legal writing to later clinical courses and law practice? The authors of this article are uniquely qualified to answer this question and to provide strategies for helping students overcome these common struggles.
The authors direct the nationally renowned legal writing and clinical programs at Seattle University School of Law, where they have engaged in cutting-edge collaborative teaching projects for nearly a decade. Even so, they found that their students, when faced with the messiness of real client representation, struggled with typical research and writing problems even as the legal writing faculty exclaimed “We know we taught them that!” So the program directors extensively studied the educational literature on transference, then spent nearly two years taking each other’s courses to understand more deeply how we could help our students apply what is taught in each program to future client work.
This article describes what we learned from these endeavors. It details the typical barriers to transference, most significantly the effects of course-dependent siloing of student learning. The article is the first to explore the ways in which faculty siloing of clinics and legal writing can exacerbate underlying transference issues. Finally, and most importantly, this article offers specific, extensive, and attainable strategies for both legal writing and clinical faculty to implement that can overcome these challenges, crack their students’ siloed learning, and help them become reflective practitioners engaged in the life-long learning necessary for excellent legal practice.
“It is not enough to teach so that students will understand, nor that they will remember. Instead, to be valuable, your teaching must be usable by your students outside the classroom.”
II. IMPROVING TRANSFERENCE OF LEARNING: TAKING EACH OTHER’S COURSES
This section begins by taking a deeper look at the missing links, i.e. the challenges that the clinicians were seeing that lead Lisa to commit to taking Mary’s 1L legal writing course and later Mary to taking Lisa’s clinical course. It then describes what happened when we took each other’s courses, which was easier and more energizing than expected. Finally, this section offers our four key insights from this process that we think apply to legal writing and clinical courses generally and provide the basis for our recommendations below.
A. Why the Clinic Director Took 1L Legal Writing and why the Legal Writing Director Took a Clinic: A Deeper Look at the Missing Links
All clinic students must do a significant amount of legal research and writing in their clinical courses and in client representation. When law students arrive in the clinic to take their first faculty supervised live client course or at an externship site to work with a site supervisor on the organization’s legal work, they generally have a solid foundation of legal writing and research skills under their belts. These upper division clinic students have almost all taken a full year or more of legal writing faculty taught courses that include researching and drafting objective memoranda, creating a research plan, reading and analyzing statutes and cases, explaining the law, crafting arguments applying the law to facts, formatting citations, and revising and editing of their own work. But, clinic faculty are often not fully aware of what exactly is taught to our students before we meet them in the clinic, nor do we know how these concepts were taught. And, even when we have some idea of the content of our students’ prior courses, we still are not effectively helping our students transfer what they learned from the faculty-created facts and legal queries in legal writing courses to the new and changing world of real client representation and problem-solving in clinics and externships.
As explained above, despite sharing syllabi, discussing common vocabulary, and joint teaching projects, clinicians and legal writing faculty at Seattle University found that our students still struggled to apply their previous legal writing learning to the new context of real client work. In the parlance of transference theory, it turns out that clinicians were having trouble “reaching back” with our students because we did not really understand what they had been taught and legal writing faculty were having trouble “stretching forward” to our students’ future clinic and externship courses.
It therefore became apparent to both the clinical and legal writing faculty that, in order to fully engage and transfer what we learned about transfer theory, Lisa needed to audit the 1L legal writing course, reflect, and work with Mary to apply what we learned to our teaching. Similarly, we realized that Mary needed to audit at least one clinical course in order to more fully recognize the opportunities to connect the 1L legal writing material to students’ later clinical work to help minimize such siloed storage in the first place. We realized that by learning more about what was taught in both the legal writing and clinical programs, we would be able to more effectively employ transfer concepts.
For example, Mary hoped that legal writing faculty could help minimize course-dependent siloed learning by more effectively stretching forward to future applications of what we taught for work in clinics and beyond. She also hoped that legal writing faculty could build a better foundation for clinical work through a deeper understanding of how near and far transfer issues play out in the clinic, including developing a better recognition of how the deep structures of the material we taught related to the structures of clinical work. Similarly, Lisa hoped that she could more effectively break through course-dependent siloed learning if she had a deeper understanding of what students had learned in 1L legal writing. She also thought that taking Mary’s course would help her use linking strategies with clinic students to more effectively help them navigate application issues, seeing how to translate their legal writing work into the new context of clinical work.
Beyond these transference issues, we also had other reasons for taking each other’s courses. When Lisa honestly appraised her own research skills, she realized that she may not be as up to date in this area as she would like or even as current in her skills as her students are upon entering the clinic. She, like many older clinicians, had come to rely on research assistants and faculty assigned law librarians to help with current research techniques. Lisa therefore hoped that taking the 1L legal writing class would both bring her up to date on current research methods and help her reinforce this learning with clinical students doing research for their clients. Relatedly, Mary had been teaching for many years, so she worried that her practice experiences were relatively stale. Mary wanted to gain a more current perspective on law practice from observing a clinic. And while we had talked about legal writing and clinical pedagogies for years, we both wanted to see the other discipline’s key pedagogies in action. Given these considerations, we realized that knowing what and how the other taught would help us build our own skills and support our students much more effectively.
B. What Happened: Why it Was Fun, Easy, and a Gift
Taking each other’s courses was a transformative experience for both of us, one we recommend to others. First, we found that auditing each other’s classes was fun and actually much easier to do than we had anticipated. Although Lisa needed to allocate approximately 100 minutes/week to go to the legal writing class, she did not need to do any significant preparation or homework for it. Similarly, Mary had to dedicate about two hours a week for attending the clinical seminar, and occasionally devoted a bit more time to attending supervision rounds, but she did not need to do prep work in advance. We therefore found the time commitment to be less daunting than we had expected.
The return on this relatively small investment of time was significant. We listened, took notes, and occasionally participated in the class discussions as it was relevant to helping students make connections between the two courses. Lisa had the pleasure of watching newly minted law students take their first baby steps into becoming attorneys under the guidance of a highly skilled and engaging faculty member, and Mary enjoyed watching 2L students deepen their development as lawyers and 3L students take their final steps before graduation. As we watched these processes unfold, we frequently had insights about what we were seeing and how it could apply to our own teaching.
At the end of each class, we would take a few minutes to check in with each other and talk about what we were learning. Sometimes, after time to reflect on the class, we might email each other with a quick idea or small a-ha on how to better link a particular class’s learning objectives more effectively to past legal writing course training or to future client representation. As a result of these discussions, we each began making small changes to our own courses, and we began making quick contributions to the discussions in each other’s courses as appropriate.
C. Key Insights From A Clinician Taking 1L Legal Writing and a Legal Writing Professor Taking a Clinic
While we had many “a-ha” moments throughout the year, our reflection since then about the experience has led us to four key insights that we think are generally applicable to legal writing and clinical faculty and courses across the country: (1) there is a disconnect for students between the necessary lawyer-centered curriculum in legal writing and client-centered curriculum in clinics; (2) there is an additional disconnect between legal writing and clinical courses related to the role of the supervising attorney that can affect student work; (3) legal writing and clinical faculty could more effectively share key teaching techniques so that students can link up the learning from both courses; and (4) many of the changes by legal writing and clinical faculty to fix these missing links and improve transference are minimal and easy rather than structural and difficult.
First, perhaps the most important insight we had about our students’ transference struggles involved the exacerbation of course-dependent siloing from the lawyer-focused legal writing curriculum and the client-centered focus of the clinic. From Mary’s perspective, the legal writing curriculum has to be largely lawyer-focused, given that our 1L legal writing students are brand new to law school. A big part of the first-year curriculum generally, and 1L legal writing in particular,necessarily involves helping them think, act, and write like lawyers. To do that, legal writing faculty tend to assign many lawyer-focused assignments, from writing in-house objective memoranda to a senior partner to writing pretrial or appellate briefs to judges. Those assignments, and the overall goal of helping students learn to think and write like a lawyer, are valuable, but, without expressly linking that work up to future client work, that lawyer-centered focus helps create the disconnect for students between their foundational legal writing learning and their later clinical work.
When Lisa took Mary’s 1L legal writing course, we both realized that the lawyer-centered focus of legal writing assignments were contributing to the disconnect between legal writing and clinical courses. In clinics, students rarely wrote the lengthy objective memos or formal appellate briefs traditionally taught in the legal writing curriculum. Instead, they more often wrote client-focused documents, such as advice letters, declarations, transactional documents like wills and advance directives, or shorter and less formal motion briefs. As a result, students were not readily linking up their well-developed research and writing skills to problem solving for actual clients when faced with them in the clinic. They were storing information by assignment type and class because we had not built in links in our teaching to help them see how this lawyer focused research and writing related to real client representation, and the connections were less obvious to the students than we expected given the different focuses of the two courses. We therefore provide a number of suggestions in Part III (A)(2)(c) below about how to supplement the necessary lawyer-focus of 1L egal writing with some client-centeredness that will make it easier for faculty in both programs to link the learning between courses.
We also realized that there was a second layer to this disconnect, regarding the role of the “supervising lawyer” in legal writing versus clinical classrooms. In legal writing, professors simulate being the student’s supervising lawyer, and in clinics, the professor is actually a supervising lawyer. However, in legal writing, the supervising attorney is receiving the junior attorney’s work while remaining the “first chair” on the case. But in the clinic, the professor is teaching the student to be the first chair, and the professor plays a more supporting role. That difference in role affects the supervising attorney’s expectations and needs, creating a subtle but important shift in “audience and purpose” taught in legal writing versus the clinical course. This shift in role can lead students to fail to link up the skills developed in 1L legal writing courses to writing for client representation.
Third, we realized that legal writing and clinical faculty could communicate more effectively about key teaching techniques that could help students link their learning in the two courses more effectively. For example, Lisa had been suggesting for years that Mary and her legal writing colleagues incorporate more reflection into their legal writing courses, given the central role of reflection in clinical pedagogy. Mary had always resisted based on concerns about the amount of time it would take and her perceived need to provide individualized feedback on anything her students write; the larger class sizes in legal writing as compared to clinical courses made that impossible. However, as a result of taking each other’s courses, Mary came to appreciate both the value of reflection and the ways in which it could be done simply and easily in the legal writing classroom, as discussed in more detail in Part III(A)(2)(b) below.
Similarly, we realized that legal writing faculty could more effectively teach clinicians about how to break tasks like legal research and legal writing down into their component parts. In taking Mary’s class, Lisa realized how much she knows about legal research and writing as an experienced practitioner and teacher, but also how unaware she was about the multiple steps she takes automatically to get to a result. Taking Mary’s class and observing new law students at the start of their education and legal careers gave her the gift of awareness of those steps, and additional language and tactics for teaching what she already knew but had not fully articulated. Lisa had a similar reaction when seeing Mary break down the parts of a legal memo or working with students on writing process issues; as a practitioner, she did many of the same things that Mary was teaching, but she had not stepped back to think about how to construct the component parts for novice learners/practitioners in the same way.
We also realized that legal writing faculty had much to share with clinical faculty about providing feedback on student work. From a learning theory perspective, feedback increases the benefits of spaced learning and retrieval of prior knowledge. Just as the different contexts of legal writing versus clinical courses affect the type of writing projects done, these contexts also can impact the feedback that faculty provide on student work. Clinicians work with students in the context of real cases, with real clients whose interests are at stake in the representation, and with immediate consequences attached when students’ work product is inadequate. Due to the time constraints that often accompany the research and drafting needed to get done for real client representation, clinicians may understandably focus more narrowly on getting the particular documents written and revised, rather than taking the broader perspective that legal writing faculty have about teaching students both how to improve a particular document and how that relates to working on other documents in the future. Because of this, clinicians can have a harder time helping students to find their own voice in their writing and to improve their overall writing habits and skills. Additionally, legal writing faculty often focus on diagnosing the underlying reasons for the student mistakes, including student writing process issues, perspectives that clinical faculty may not have as they approach student writing. Legal writing faculty provide students with tools and techniques that are explicitly designed to help students become self-regulated learners about their own writing. Relatedly, legal writing faculty break down tasks into smaller tasks for our novice students, while clinical faculty may do these steps automatically and rapidly, which makes it harder for clinical faculty to both teach and reinforce the processes that students learn in legal writing. Yet clinical students sometimes perform sub-par work in part because they forget to go through all the necessary steps in the process, such as focusing on editing for sentence-level changes without first revising a document in terms of content and organization. We therefore realized that legal writing faculty and clinicians should focus on collaborating around how to effectively diagnose and provide feedback in response to ineffective student work product.
Finally, while these three insights might at first seem like they would lead to large structural changes, we actually found that several of the most effective approaches to implementing changes were small and easy. Structural changes would generally be controversial and hard to implement, but once Lisa had a deeper understanding of the 1L legal writing curriculum and Mary had a clearer sense of the clinical curriculum, we identified a number of quick and easy ideas that we could implement right away to address the transference issues and provide more effective links between the 1L foundational learning and the upper-division clinical experiences. The next section therefore makes a number of recommendations for relatively small to moderate changes to both legal writing and clinical courses that can provide significant benefits for student learning. We recognize that not all these suggestions will work for everyone at every law school; instead, we are providing a menu of options in the hope that one or more suggestion would work for everyone.