Practical Legal Writing Akin To Scholarly Writing

Since 2012, I have taught eight sections of a scholarly writing course for law students. For fall 2015, I have been tapped to teach a different type of writing course. I will teach research & writing to international LL.M. students. I am excited to try something new - and also a little apprehensive.

For the LL.M. course, I will teach the students how to research, write an objective memo, write a persuasive brief, and do an oral argument. That is a lot to fit into one semester. Practical-legal writing is different than scholarly writing, and I have to refresh my own memo and brief-writing skills to effectively teach the process to students.

This made me happy to run across the following article: 

Adam G. Todd, Teaching “Scholarly Writing” in the First-Year LWR Class: Bridging the Divide between Scholarly and Practical Writing, 22 Perspectives: Teaching Legal Res. & Writing 35 (2013).

From the article: 

The divide between “academic writing” as is found in seminar papers or law journal articles and writing found in practice is often overstated. Certainly there are some clear differences. As David S. Romantz points out in his cogent review of Fajans and Falk’s book, scholarly writing requires legal analysis without regard to advocacy or “the client,” but instead speaks to other “academicians” in the field of the topic being addressed. Romantz states the purpose of scholarly writing is not to predict or advocate but explore ideas and advance a critical dialogue about a topic. Finally, the subject matter of scholarly writing is typically selected and shaped by the writer in contrast to practical writing, which must conform to the needs and circumstances of the client. However, both scholarly and practical writing have many similarities in terms of style, form, and tone. Both forms of writing require thorough research, lucid analysis and argumentation, and “uncompromising attention to detail.” Both forms of writing have, while not identical, quite similar audiences. Good scholarly writing, ideally, considers the practical aspects of the law. Similarly, good practical writing does not ignore but considers the scholarly sources on a given topic. Practical writing should be cognizant of theory and the issues raised by experts as reflected in scholarly writing. 

The author, Todd, discusses how he had the students approach the different types of writing. Specifically, I asked them to think of the “Question Presented” and “Brief Answer” of the memo for this seminar class as the “Introduction” of the paper, which would articulate a statement of their thesis and provide a brief summary of their arguments and findings. I pointed out that the memo’s “Statement of Facts” is similar to the “Background” section typically found in scholarly papers. The “Discussion” section of the memo mirrors the central discussion section of the paper, which is broken down into subsections with subheadings. The memo’s “Conclusion” section also closely resembles the “Conclusion” section of the paper. Finally, the citations used in the text of the memo are to be reformatted into footnotes.

Todd is right that a lot of the skills necessary for effective scholarly writing transfer nicely to practical writing. And this discussion of the similarities of practical writing and scholarly writing is the bridge that I needed to feel more confident in teaching my course this fall.