We’ve all heard the argument:“You’re holding me to too high astandard! You can’t actually expectme to write like a lawyer! I’m just afirst-year law student!”

No, we don’t expect ourstudents to write like lawyers – atleast, not from the first day of lawschool. But critical to the students’professional development is a trueunderstanding of how their writingcompares to that of real lawyers.

When I began teaching, Igraded on a classic A/B/C/D/Fscale. The students liked thisgrading system because theyunderstood it – it was familiar tothem, and it corresponded to thesemester-end grade they’deventually receive. For me,however, this grading systemcreated two major problems: thestudents who received the A’sthought that they were writingeven better than many reallawyers, and, by virtue of the

grading curve, all of the studentscompared themselves to theircolleagues (other first-year lawstudents), rather than to lawyers.They thereby lost sight of theprogress they needed to make topass the bar and becomecompetent attorneys.

Because professionalism hasalways been an importantcomponent of my course, I createda new grading scale. The AttorneyMastery Scale includes scores of 1-10, with explanationsaccompanying each score andexplaining how a supervisingattorney would likely evaluate thiswriting if it were submitted by ajunior attorney.

At the beginning of thesemester, students receive a copy ofthe scale. I grade all assignmentsaccording to this scale and weightthe scores at the end of thesemester.Attorney Mastery Scale10 – Perfect: needs no revision.9 – Near perfect: needs almost no

revision.8 – Truly excellent: at the level of a

seasoned attorney.7 – Excellent: at the level of a

quality junior associate; needsrevision and reworking asmarked on paper.

6 – Excellent: at the level of a topfirst-year student; needsrevision and reworking asmarked on paper.

5 – Very good: obvious attention todetail, good analytical andresearch skills; needs revisionand reworking as marked onpaper.

4 – A good first effort: lacking inresearch, analytical, or writingskills, or any combination ofthese; needs revision andreworking as marked on paper.

3 – Needs significant improvement:displays some obvious effort,but is seriously lacking inresearch, analytical, writingskills, or any combination ofthese; needs revision andreworking as marked on paper.

2 – Poor: evidences poor effort,poor understanding of theconcepts, or both; is seriouslylacking in research, analytical,or writing skills, or anycombination of these; needsrevision and reworking asmarked on paper.

1 – Very poor: evidences extremelypoor effort, poorunderstanding of the concepts,or both; is very seriouslylacking in research, analytical,or writing skills, or anycombination of these; needsrevision and reworking asmarked on paper.

0 – Needs to start research andwriting from scratch.

Using an Attorney Mastery ScaleLisa T. McElroy, Southern New England School of Law

In This Issue

Letter from the Editors ............2

The President’s Column ..........3

Articles..................................4-15

The Next Step............................6

From the Desk of theLegal Writing Specialist...........8

News.........................................13

Calendar...................................15

THE

SECOND DRAFTBulletin of the Legal Writing Institute

CONTINUED ON PAGE 15

Volume 21, No. 2 From Law Student to Lawyer December 2006

THE SECOND DRAFT2

Letter fromthe Editors

In one of my first job interviewsafter college, a particularly surlyinterviewer told me that for allmy education, I had no usefulskills - all my Bachelor of Artsdegree was good for was “aworking knowledge of theEnglish language.” We came tothis issue of The Second Drafthoping that you would share withus how you prepare students toleave law school with more thanjust a working knowledge of legallanguage. As usual, our hopeswere exceeded, and we thinkyou’ll agree that this issue is filledwith practical and innovativeguidance for bridging the gapbetween law school and legalpractice. From using an “AttorneyMastery Scale” to give students“real world” feedback andcontext, to taking students on“field trips” to learn what that“real world” looks and feels like,this volume of The Second Draftprovides new ideas to help usprepare our students to practicelaw.

Our next issue furthers thispractical theme, and its subject,“Methods of Providing Studentswith Effective Oral and WrittenFeedback on Their Writing,” callson colleagues to share the bestways in which they haveprovided their students withconstructive critiques duringconferences and in writtencomments. We look forward toseeing your submissions, andguidelines and dates can be foundat www.lwionline.org. Thanks toall who submitted articles to thisSecond Draft. Enjoy!

Lisa HealyKathy VinsonStephanie HartungSamantha Moppett

THE LEGAL WRITING INSTITUTEThe Legal Writing Institute is a non-profit corporation founded in 1984. The purpose of theInstitute is to promote the exchange of information and ideas about legal writing and toprovide a forum for research and scholarship about legal writing and legal analysis.

Executive CommitteePresidentSusan Hanley Kosse (University of Louisville-Louis D. Brandeis School of Law),susan.kosse@louisville.edu

President-ElectRuth Anne Robbins (Rutgers School of Law-Camden),ruthanne@camden.rutgers.edu

Immediate Past PresidentTerry Jean Seligmann (University of Arkansas School of Law - Fayetteville),tselig@comp.uark.edu

SecretaryKristin Gerdy (Brigham Young University School of Law), gerdyk@lawgate.byu.eduTreasurerKen Chestek (Indiana University School of Law - Indianapolis), kchestek@iupui.edu

Executive Committee Members at LargeSteve Johansen (Lewis and Clark Northwestern School of Law),tvj@clark.edu

Terry Jean Seligmann (University of Arkansas School of Law - Fayetteville),tselig@comp.uark.edu

DirectorsDan Barnett (Boston College Law School)daniel.barnett@bc.edu

Ken Chestek (Indiana University School of Law - Indianapolis)kchestek@iupui.edu

Linda H. Edward (Mercer University School of Law)edwards_lh@mercer.edu

Anne Enquist (Seattle University School of Law)ame@seattleu.edu

Kirstin Gerdy (Brigham Young University School of Law)gerdyk@lawgate.byu.edu

Steven Johansen (Lewis and Clark Northwestern School of Law)tvj@lclark.edu

Susan Hanley Kosse (University of Louisville Louis D. Brandeis School of Law )susan.kosse@louisville.edu

Tracy L. McGaugh (South Texas College of Law)tmcgaugh@stcl.edu

Carol McCrehan Parker (University of Tennessee College of Law)parker@libra.law.utk.edu

Ruth Anne Robbins (Rutgers School of Law - Camden)ruthanne@camden.rutgers.edu

Judy Rosenbaum (Northwestern University School of Law)j-rosenbaum2@law.northwestern.edu

Suzanne Rowe (University of Oregon School of Law)srowe@law.uoregon.edu

Terry Seligmann (Univ. of Arkansas School of Law - Fayetteville)tselig@comp.uark.edu

Michael Smith (Mercer University School of Law)smith_mr@mercer.edu

Cliff Zimmerman (Northwestern University School of Law)c-zimmerman@law.northwestern.edu

The Second Draft is published twice yearly and is a forum for sharing ideas and newsamong members of the Institute. For information about contributing to The Second Draft,please visit the Institute’s website at www.lwionline.org.

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Dear LWI members:We are off to a great start! I am pleased to

announce that the 2006-2007 committees have beenposted on our website, www.lwionline.org. I amthrilled that over 140 (yes that is ONE HUNDREDFORTY) of you answered our pleas and havevolunteered to help! That has to be a record.Appointing so many people would not have beenpossible without the help of the committee oncommittees. I want to thank:Chair:• Michael Smith, WyomingMembers:• Judy Rosenbaum, Northwestern University• Anne Enquist, Seattle University• Rachel Croskery-Roberts, The University

of Michigan• Judith Stinson, Arizona State University• Jessica Elliott, Roger Williams University

An extra big thank you to Rachel who collectedand organized all the names. She deserves a hugeround of applause.

In addition to appointing committees, I have alsoappointed a board liaison for each committee. Theliaisons will answer questions and keep the Boardinformed about the committee’s activities. Thenames of the board liaisons are also posted on thewebsite. Please feel free to contact any of the liaisonsif you have any suggestions, comments or concerns.

The President’s ColumnEach committee has been given a date to

complete its charge. The schedule for this year isas follows:Oct:Plagiarism, Committee on Mentoring Programs,Blackwell

Nov:Website, ABA Standards Education Committee,Committee on Committees

Dec:New Member Committee, ProfessionalDevelopment

Jan:Long-term Planning Committee (progress report atboard meeting), Scholarship Development, By-laws(report for board meeting), Conference Scholarship(January 2008)

Feb:Teacher Exchange, Scholarship Outreach, ArchiveProject

March:Clinical, Upper-level Writing

April:Idea Bank, Committee on Teaching Resources,Monograph Project

May:Bar Outreach, Survey Committee Report,Golden PenAs the months go by I hope to report on many

exciting initiatives coming out of these committees.In addition to these activities, the Board will bediscussing the job posting issue at its January Boardmeeting. Thanks to all of you who sent us yourcomments. Finally, the Board is already beginning tothink about the 2010 & 2012 conferences and will besending out a request for proposals soon. Please startthinking about whether you would like to showcaseyour school and city.

Hope the fall semester is going well for all ofyou!

Susan

Susan Hanley KosseUniversity of Louisville-Louis D. Brandeis School of Law

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I have added “teaching theculture(s) of law practice” to myOne L curriculum. I did it formany reasons. Many first yearlaw students’ exposure to lawpractice is limited to Law &Order. Others may know lawyerssocially and may even know whatlegal assistants might do, buthave little idea what lawyersthemselves do day-to-day,whether in law firms or other lawoffices. Finally, lack of familiaritywith the culture of law practicecan have adverse consequencesfor students seeking jobs. I’veseen many fine law studentsshoot themselves in the foot in thejob market, in part because ofunfamiliarity with the formalityand hierarchy of some lawworkplaces.

To teach One L students aboutthe cultures of different lawworkplaces, I have organized aseries of field trips. Each field tripallows a small group of One L’s tomeet Philadelphia lawyers intheir natural habitats – either thelawyers’ offices or meetings of thelocal bar association. The idea isto expose students to howlawyers in different workplacesdress, act, and talk in professionalsettings. The field trips givestudents a glimpse of what theymight expect to experience on acallback interview – such as asecurity procedure, a receptionist,and busy lawyers in the halls –but with less at stake, because thefield trips take place outside thecontext of job-seeking. Thestudents ask the lawyers whatthey do on a typical day. BecauseI ask students to visit lawyerspracticing in an area the studentmight want to pursue, the field

trip might be a first chance for thestudent to get a sense of his/herown future work life.

Unlike bringing lawyers tocampus, when lawyers mayadjust their behavior to the lessformal atmosphere of the lawschool, bringing students to thelawyers’ offices lets the studentsabsorb a bit of the realatmosphere of the law offices.Seeing the lawyers’ papers piledon desks, rows of case files, boxesof documents, and hearingphones ringing creates a morevivid impression of how busylawyers can be than I could in myclassroom. Visiting the lawyers’offices also requires students tobegin stepping into the shoes of alawyer in a more literal sense,since I require students to dressmore formally than they wouldon campus – no open-toed shoes,no jeans, no short sleeves.

Field trips to lawyers’ officesso far have included thePhiladelphia District Attorney’sOffice, a small plaintiffs’consumer and antitrust law firm,local government transactionaland real estate practitioners, acommercial litigation boutique,and in-house transactionalcounsel for a large corporation.Field trips to Philadelphia BarAssociation committee meetingshave included meetings withattorneys only, as well as severalmeetings with federal judges.Typically, the attorneys andjudges have welcomed thepresence of students, invited theirquestions, and even tailored theircomments to the students.

In addition to field trips, Iteach the culture of law practiceby encouraging students to attend

on-campus career panels, to takeadvantage of workshops onnetworking and other career-building skills, and to attend lawschool functions that includepracticing attorneys. I have alsoinvited clinical faculty to speak tomy class. Finally, I weave storiesfrom my eleven years of lawpractice into my teaching.

My student evaluations fromlast year reflect that, for manystudents, the high point of thefirst semester was a field trip tomeet practicing lawyers andjudges. “The highlight of thecourse was lunch with a federalappellate judge.” “The field trip Iwent on was fantastic. It allowedme to see what it is that I amaiming for at a time when thatseems so far away.” This year’sstudent reaction also has beenpositive. “It was great to get awayfrom the classroom ‘law in theory’and to see ‘law in action.’” “Thefield trip to a litigation boutiquewas a wake-up call about howmuch work to expect in lawpractice.”

Student to Lawyer:Teaching the Culture(s) of Law PracticeSarah Ricks, Rutgers School of Law - Camden

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Most of us would agree thatreading statutes and judicialopinions is central to the practiceof law. However, there has notbeen much research about howlawyers read legal text. If legaleducation is supposed to preparestudents to practice law, thenperhaps we need to teach ourstudents how to read like legalexperts.

In 1997, Mary Lundebergconducted a study in which tenexperts (eight law professors andtwo attorneys) and ten novices(individuals who were presumedto be good readers but who hadno training in law) thought aloudas they read a judicial opinion.1Lundeberg found that while veryfew of the novices began theirreading by noting the names ofthe parties, the date of theopinion, or the court and judgedeciding the case, almost all ofthe experts did. In addition, mostof the legal experts madestatements agreeing ordisagreeing with the court’sholding or rationale. Further, theexperts were more likely than thenovices to preview the opinion,reread it analytically, and toengage in synthesis. Over the pastyear, I have been in the process ofconducting my own empiricalresearch on the way in whichlawyers read the law. In mypresent study, I examined the wayin which ten legal experts(lawyers and judges who havebeen out of law school for morethan 15 years) read a simple legalopinion.2 I compared the readingstrategies used by the lawyers orexperts to the reading strategiesused by first year law students.The results were fascinating:practicing lawyers and judgesread cases very differently thanlaw students. The following listhighlights the ways in which

practicing lawyers and judges’reading of the law differs fromthat of first-year law students:Lawyers read with a purpose.They ask “why am I readingthis case?” before they begin toread.

Lawyers establish the context ofthe case before they begin toread. They note the date, courtand parties.

Lawyers preview the opinion.They look at the length of theopinion, the keynotes, and thebasic legal issue before theybegin to read.

Lawyers summarize eachparagraph and then move on.They focus on the most relevantparagraphs of the case and skiparound the opinion, skimmingirrelevant text.

Lawyers synthesize the law asthey read. They analyze thefacts of the case, comparing andcontrasting them with priorprecedent as they read.

Lawyers evaluate the case as theyread. They agree or disagreewith the court’s reasoning andevaluate the end result of thecase. Was it correct? Was it ajust and fair decision?

Lawyers use their experience andknowledge to enhance theirunderstanding of the case. Theyanalyze the case based upontheir past experience in thecourtroom, knowledge ofjudges, etc. to contextualize thetext as they read.

Lawyers do not waste timehighlighting or underliningtext; they move through the textefficiently. They rarely mark thecase as they read, but insteadsummarize the case, focusing onthe issues most relevant to theirlegal problem.

Lawyers reread the text whenthey are confused. They makesure they understand eachparagraph, each word, and eachfact or rule before reading on.Most of us try to teach our

students how to become goodlegal readers. Yet, we also need tothink about how to teach ourstudents the techniques that“expert” legal readers use.Lawyers and judges encounter farmore legal text each day thaneven the busiest of law students.Legal experts have developedunique skills that enable them toread large volumes of textefficiently and purposefully. Ifour goal as legal educators is toprepare students for practice, thenwe need to teach them to readlike legal “experts” and practicingattorneys. The more they canachieve some of these skillsduring law school, the better forthe individual students and thebetter for the legal profession as awhole.1 Mary A. Lundeberg,Metacognitive Aspects of ReadingComprehension: StudyingUnderstanding in Legal CaseAnalysis, 22 Reading Res. Q. 407,411 (1987). See also Ruth AnnMcKinney, Reading Like A Lawyer:Time-Saving Strategies for ReadingLaw Like an Expert (2005).Professor McKinney’s bookprovides an eloquent andaccessible way to introduce newlaw students to the challenges oflegal reading.

2 Using a think-aloud protocol, Iasked each of the participants toread a case and talk out loud asthey read. I then transcribed thethink-alouds and coded the data todetermine what percentage of timeeach participant spent utilizing aspecific reading strategy.

Teaching Legal Reading For the Practice of LawLeah M. Christensen, University of St. Thomas School of Law

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Each spring, reference librariansand legal writing faculty at theUniversity of Oregon prepare firstyear law students to research inthe real world by assigning short,independent research projects. Asin the real world, and for theseprojects, the professor does notknow the answer, the studentstrack their billable hours, and theylearn that sometimes the bestresource is one they had neverthought of before.

Here’s how it works: First,students choose a short researchproject. They can either choose aproject from a prepared list or theycan choose a project of their own.Allowing students to research anissue of their own keeps theresearch project interesting andmeaningful. Topics have includedexpunging a conviction, properexecution of a living will,responsibility for cleaning upasbestos in a condominium, and atopic the students thought wouldappear on their property exam.

Students then have one to twoweeks and a set number of billablehours to work on the researchproject. Because the project occursat the end of the year whenstudents are gearing up for exams,we set the billable hours low,somewhere between six to eighthours. During that time, studentsmust conduct their research, meetwith a reference librarian, recordtheir billable hours on a timesheet, and write a two to threepage memo explaining what theyhave found so far and whatresearch remains to be done.

The project has many benefits.For example, introducing theproject gives another opportunityfor the professor to providepractical advice about receiving anassignment from a senior attorney.

Some of the wisdom passed alongincludes:• Always walk into a senior

attorney’s office with a pad ofpaper and a writingimplement.

• Always ask for a due date.• Always ask for the billing

number.• Determine whether the project

has constraints in terms oftime or money.

• Determine what the endproduct should look like.

• Consider asking for a sample ifthe end product is newto you.The professor can also discuss

what to do if the student can’t findan answer to a research questionand how much more common thatis outside of school. And theprofessor can discuss what to do ifthe student finds an answer, butit’s not the answer the client wantsto hear.

Meeting with the referencelibrarians helps students tosee them as resourcesbeyond thecurricular supportthey provideduring theacademic year.When the studentsmeet with thereference librarian,the students areasked about theresearch steps theyhave taken, what theyfound, and what obstaclesthey encountered. While theseprojects present a chance forstudents to revisit a number ofstandard primary and secondaryresources, they also present thelibrarian with an excellent

opportunity to introduce attorneypractice guides, treatises, and themore specialized, topical databasesfound in Lexis and Westlaw. Inaddition, the librarians willtypically offer to help constructonline search strategies andcritique overall research plans.

These consultations providethe librarian with the chance toreinforce the traditional steps in aresearch process, including whento stop. The librarian can alsoprovide some practical advice thestudents may not have needed fortheir school assignments:• The assigning attorney will

rely on what you uncoverabout the issue(s) beingresearched.

• It is not cheating to ask aboutprevious, related research, orto ask for preliminaryguidance from anotherattorney. It’s economical!

• Consult with a librarian earlyon about the resourcesavailable to you, includingthose available at your firm’s

library, the county orother public access lawlibraries, and online.

At the end of theproject, the studentsmeet again as a class.

As a class, they discussnot only the answers that

they found but also whatthey have learned aboutresearching. Theydescribe new-found

appreciation for resourcessuch as loose-leaf binders.

They discuss the value of atelephone call to the rightgovernment agency. They reportthat six billable hours is a reallyshort period of time.

The Next StepResearch in the Real WorldJoan Malmud, University of Oregon Law SchoolAngus Nesbit, Reference Librarian, University of Oregon Law School

Last year, as I began my eighthyear of teaching, I made aconscious effort to sprinklenuggets of humanity throughoutmy lectures. Now, before you rollyour eyes, my goal was not tocreate “kinder and gentler”lawyers, but rather to ensure thatthese first-year law students didnot feel the need to alter theirpersonalities or moral characterupon entering law school. Thechallenge was to convey to thestudents that, contrary to howthey may have seen lawyersportrayed on television and in thenews, kindness in the practice oflaw does not reflect weakness.

I have always addressed theissue of how to behave in court orin a law office. This typicallyarises toward the end of the year,as we discuss preparing for oralarguments. As a former AssistantDistrict Attorney, I rely on myexperience when I tell thestudents that, legal knowledgeand careful preparation aside, onemust also be courteous andprofessional at all times. I tellthem that law students andlawyers should always make aneffort to be kind to the followingpeople: court officers, clerks,probation officers, secretaries, andof course, judges. I intentionallybegin the list with those personsthat students may assume areonly “support staff.” I explainthat no one has more power inthe courtroom than the courtofficers and the clerks, becausethey control the “calling of thelist.” I explain that on manyoccasions I witnessed an attorneysitting in the courtroom, waitingfor his or her case to be called,only to learn that the case hadbeen moved to the bottom of thelist. Invariably, this attorney waseither curt or rude to someone inthe courtroom, and suffered the

consequences of that behavior.The same consequences are surelydoled out in a law office, wherean administrative assistant willlikely be more willing to help outan attorney who treats thatperson with respect and kindness.

Last year, the issue of themoral character of lawyers wasthrust into the faces of mystudents when a highly-publicized e-mail, written by arecent law school graduate,traveled the globe. This series ofe-mails chronicled discussionsbetween a Boston lawyer and arecent law graduate who hadrecently interviewed at his firm.Upon learning that the salaryoffered would not be assubstantial as she had hoped, shesent a testy email stating that shewas no longer interested in theposition. This highly publicizedcorrespondence underscored theimportance of the rule: neversend an e-mail in anger. Or, as Itell my students, ask yourself thefollowing question before sendingan email: How would you feel ifyour email were published so thatthousands of people would readit? If the answer is: “I wouldcrawl under a rock and die,” thendon’t send it. The writer of thisnotorious e-mail gained most ofher notoriety not by the substanceof what she said – although thephrase: “blah blah blah” isunprofessional on so many levels– but by her tone. Teaching aboutprofessionalism late in the year,and preparing them for theirsummer jobs, I referenced thisemail to teach my students that alawyer must be careful what sheputs in writing. However, thediscussion quickly transformedinto something more intangible;we began talking about the basicneed to be kind and courteous inour profession. When the

discussion took place in April, thestudents understood mypersonality and had heardenough war stories aboutsurviving in the trenches of anurban District Attorney’s office tobelieve me when I said: Don’tmistake kindness for weakness.The students seemed relieved thata professor, and formerprosecutor, was telling them thatthey do not have to assume anoverly hostile and cold persona tosucceed as an attorney. Beingcompassionate, empathetic, anddecent can co-exist with beingaggressive, assertive, and strong-willed.

To my delight, the response tothis lecture was phenomenal, andbest summed up by one student’semail: “by the way you are alsothe only Prof. who has actuallymentioned anything abouttreating other people in and outof this field nicely and withrespect; I think that is extremelyimportant to impart to peoplechoosing this career before theyleave the nest.”

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The Humanity of the Practice of LawAnn McGonigle Santos, Suffolk University Law School

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Lurene Contento, The John MarshallLaw School, Chicago

Lawyers use IRAC, judges useIRAC. From the new associatewriting his first memo, to theappellate judge writing her lastopinion, everyone (well, almosteveryone) uses IRAC (or its kin)to get organized. Call it what youwill, IRAC is here to stay. So whatbetter way to prepare students forthe practice of law than to givethem a solid understanding ofIRAC: the classic small-scaleorganization form.

Before students can effectivelyuse IRAC, they need to knowwhat it is and where it goes. Earlyin each semester, I present anIRAC workshop for beginning(and generally overwhelmed!)students. I keep the workshopsimple and keep the focus onstrong visual images that helpstudents “see” what IRAC is allabout. Although most of thestudents have read about IRAC orat least heard of it, they come tothe workshop confused abouthow to use it. They also want toknow why they should use itwhen friends in other classes areusing SIREAC or CRuPAC orTREAT or some other funny-sounding acronym. To clear upthe confusion, I use the followingoverhead:

The students begin to see thatwhile IRAC and kin havedifferent names, their elementsmatch up. After seeing therelation between the kin, thestudents ask, “But, what do allthose letters mean?!” That comesnext.What IRAC Means

The workshop goes into muchmore detail than I’ve givenhere. Because we all knowwhat IRAC is, whatfollows is very, very basic.Line One: Whether youcall it Issue, Conclusion,Sub Issue, Topic, or Thesis,you have to tell yourreader what the issue isbefore you write about it.Line Two: Then, you needto set out the general Rules(Rules) so your readerunderstands the law beforeyou apply it. Line Three:Sometimes, you will needto use precedent cases toIllustrate, Prove, orExplain, the rules. ThisE/I/P is “assumed” in theclassic IRAC acronym.Line Four: You then Apply therules, or in Analysis explain howthe rules and precedent cases fitwith your facts. Line Five: Last,you Conclude or restate theThesis as a conclusion as to the

precise issue youdefined in theIssue. Whetheryou’re using IRAC,TREAT, SIREAC, oranother acronym,you’re presentinginformation in thesame way – in aclear, logical waythat legal readers

have come to expect.Where IRAC FitsNow that students know what

IRAC is, they need to see how itfits into their analysis. Moststudents know that IRAC is usedfor small-scale organization, butfew students understand whatthat means. So, time for anotheroverhead:

This bare-bones structurehelps students see how IRAC fitsinto their analysis, that theirIRACs will be nested within the“global issue.” Everything in boldis part of the “global issue,” a.k.a.the large-scale organization. I’vealso called the global issue the“big issue,” or the “main issue” orthe “legal question you need toanswer.” I’ve even called it the“whole enchilada.”

Once you know your globalissue – and here I spread my armswide and draw out the “g – l – o –b – a – l” sound, then you need tofind each of the little sub-issues.

From the Desk of theLegal Writing SpecialistDemystifying IRAC and Its Kin:Giving Students the Basics to Write “Like A Lawyer”

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THE SECOND DRAFT 9

And here I squint my eyesand pinch my fingers together.IRAC is used to organize eachlittle sub-issue (pinch and squint)within your global issue (spreadarms wide). Whether you have 3sub-issues or 23, each generallyhas its own Issue, Rule,(Explanation), Application, andConclusion. And, depending onhow complex the sub-issue is, itmay have its own even tinier “subsub-issue” IRACs.

Putting IRAC to WorkNext, the students and I fill in

the bare-bones structure using aglobal issue that easily breaksdown into elements: burglary. Igive them the global issue andglobal rule. The issue is whethertheir client can be convicted ofburglary. The rule is that adefendant commits burglary if hebreaks into the dwelling ofanother intending to commit afelony therein. We then break out

the sub-issues by finding each“component part” that may needto be analyzed. I tell the studentsto put a number over each.Usually they find five or six.

I then give the students a veryshort fact pattern and somepared-down facts and holdingsfrom a precedent case or two.Together, we go through one ofthe IRACs and plug in theinformation. We come up withsomething like this:

ISSUE STATEMENT (Question Presented) for the GLOBAL ISSUEDid a person commit burglary if…(add legally significant facts)

BRIEF ANSWER as to the GLOBAL ISSUEYes, a person has committed burglary when he…(add legally significant facts)…because (add legalstandards)

ANALYSIS of the GLOBAL ISSUEClient wants to know if he has committed burglary. A person commits burglary if he breaks into adwelling of another with the intent to commit a felony therein.

Sub-issue 1: I The first issue is whether (structure in question) is a dwelling.R A dwelling has been defined as…(E)In Doe, the court held that “X” was a dwelling because…A The structure here is similar to “X” because…C Therefore, the structure is a dwelling.

Sub-issue 2: I The second issue is did the client “break into” the dwelling.R(E)AC

CONCLUSION as to GLOBAL ISSUETherefore, because of the mini conclusions in the sub-issues, client committed burglary.

This visual, while simple, isone that the students readilyunderstand. They can see howtheir analysis fits in the IRACsthat fit within the global issue.Packing IRAC to Go

Now that the students have abasic understanding of IRAC(what it is, where it goes, andhow it relates to its kin), theyneed be encouraged to use it –and not just in law school.Recently, a student asked me toreview a memo that she wishedto use as a writing sample. It wasa memorandum that she hadwritten at her present job. Istarted reading; I got lost. I triedagain, but before I got to pagetwo, I was lost again. I tried

retracing my steps. I tried flippingpages back and forth. Nothingworked. The paper seemed tohave no organization. When thestudent came in for herappointment, I asked her toexplain to me how she hadorganized the memo. Shecouldn’t. I asked her if she hadever learned IRAC. She said thatyes, she had, but that IRAC isonly used in law school, and that“no one in the real world” uses it.So from my shelves, I pulleddown a couple of recent courtopinions. As we went throughthem, I pointed out the I – R – A –C. Lo and behold, someone reallyDOES use IRAC in the real world.In fact, most lawyers (and judges)

use it – even if they can’tremember what it’s called or whatthe letters represent.

Students use IRAC (or its kin)in law school because it’s whatprofessors prefer. But studentsshouldn’t abandon IRAC whenthey leave. As someone once toldme, “Pack IRAC [or a kin] in yourknapsack and take it with youwhen you go.” Because whetheryou’re a student or a SupremeCourt justice, organization is thekey to clarity. And maybe moreimportant to soon-to-be lawyers,clarity wins cases. If you writeclearly and your organization issolid, you’re not only on yourway to “writing like a lawyer,”but writing like a winning one.

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In preparing students for dailypractice, law professors shouldhelp students understand anddevelop a professional attitude.They can do so by modelingprofessionalism, encouraging andaffirming appropriate professionalbehavior, offering observationopportunities, and demonstratingbalance.1. Model professionalism. Lawprofessors often provide students’first extended exposure toattorneys. Their behavior cantherefore have a powerful effect onlaw students’ perceptions of lawpractice.* Consider how your commentsreflect your attitude toward lawschool and law students, towardlaw practice, and toward thelegal system. For example, lawpractice may have made youmiserable, but many of yourstudents are spending threeyears and $100,000-plus with agoal of doing that very thing.Listening to a professor criticizetheir professional goal isdemoralizing. Try to offer yourown experience without blanketdenigration of your students’career choice.

* Consider how the way you doyour job reflects your ownprofessionalism and thereasonableness of the standardsto which you hold your students.If a professor comes to class late,offers handouts with errors, anddoesn’t return papers aspromised, it’s hypocritical forthat professor to hold students toa higher standard ofperformance.

2. Encourage and affirmappropriate professionalbehavior. We can teach ourstudents from an assumption (1)that they are not professional or (2)that they are professional. Teaching

from the negative assumption isdemonstrated by policies thatassume that bad (unprofessional)behavior will occur; teaching fromthe affirmative assumption isdemonstrated by policies thatassume that with notice, studentswill do what is appropriate(professional). For example, whenattendance is required at a non-classroom event, a professor mayplan how to take role to be surethat students attend. Thatapproach suggests that studentsmust be monitored and theirattendance, independentlyconfirmed. Another professor mayask the students to submit signedcertificates of attendance, relyingon the students to report accuratelyand be bound by theirsignature–much as they will be inlaw practice.3. Offer observationopportunities. Students may cometo law school with little exposureto law practice. Their concept ofprofessional behavior may havebeen shaped by “Boston Legal,” bytheir experience in traffic court, orby nothing at all. At Tech, werequire two activities in our“Professional ObservationRequirement” to provide studentswith a more accurate picture ofprofessional life; our syllabusstates:Understanding the real-lifecontext in which law is practicedis an important part of legaleducation. The law school andthe community regularly offerstudents opportunities to learnmore about the practice of law,and the Legal Practice Programhas the following requirements:Each semester, at least one courtholds oral arguments at the lawschool… In addition, the Boardof Barristers competitions’ finalrounds are open to the studentbody and offer opportunities to

watch mock arguments. Youmust observe at least one hour(or complete round) of oralargument either at the law schoolor on-site at a court of yourchoosing and write a 1-pagereaction paper…Each semester, students havemany opportunities at the lawschool to listen to guest speakerson a variety of professionaltopics. Local bar associationlunches and events also offer theopportunity to learn about thepractice of law. You must attendat least one guest lecture, panel,speaker, or event and write a 1-page reaction paper…

4. Demonstrate balance. Lawyershave high stress levels, and a rateof substance abuse and depressionhigher than that of the generalpublic. As professors, we havethree choices: to do nothing, tocontribute to those rates, or tobreak the cycle. One way to breakthe cycle is to model not justprofessionalism, but a balancedapproach to law and life thatmaximizes health, well-being, andboth job and life satisfaction. Onegroup that promotes this approachis Humanizing Legal Education(www.law.fsu.edu/academic_programs/humanizing_lawschool/humanizing_lawschool.html).Helping law students to be happyand healthy sets the pattern forthem to be happy and healthyprofessionals. Showing respect forstudents as people; encouragingstudents to balance school withfamily, friends, and leisureactivities; being aware of resourcesfor them; and sharing with themour own struggles to find andmaintain balance – those are themost valuable ways that we canprepare students for the specificsof daily practice.

Cultivating a Professional AttitudeNancy Soonpaa,Texas Tech University School of Law

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Making the transition from lawstudy to law practice requiresfocusing attention, synthesizinginformation, and rigorouslyapplying skills that are new andnon-intuitive. One pedagogicaltool that combines the knowledgegained in law study with theskills needed for practice is the“Presentation to a Partner”simulation exercise. Presentationsto partners combine an oralpresentation of the results ofresearch with an informationprocessing exercise in which thestudent must receive and respondto rapidly changing feedback andinquiries from the audience, all infive or ten minutes.

Presentations to partners andsupervisors are a routine if notweekly occurrence for younglawyers in every law office. As apractice simulation to testlawyering skills, presentations topartners are comparable to trial orappellate oral argument sessions,but presentations can avoid muchof the pomp and circumstance oforal arguments—the formality oftone and decorum, the grandnessof the presentation, the litigationsetting, the rigid structure of theoral argument paradigm—without losing the opportunitiesto test the students’ skills andexplore their preparation,knowledge, understanding, andanalysis of the problem.

A presentation to partnersimulation should follow thefollowing pattern:

Initiation: The “partner” —most often portrayed by theprofessor —initiates thesimulation by inviting the studentinto an office or conferencesetting, and may wish to draw thestudent into the role-play bystarting out with a short burst oflaw firm banter. This initiationcan relax the tone of the setting or

set the tone in a differentdirection if you want to challengestudents with a series ofquestions that the students werenot expecting to have to answer.

Opening statement: Veryearly in the simulation, thepartner will turn to the studentand ask for the presentation of thestudent’s analysis andconclusions. Evaluation criteriafor the opening statement include:• Is the student speaking clearly

both in a presentation senseand in a content ofcommunication sense?

• Is the student starting outwith the most importantinformation first (theconclusions) followed by themost important supportinginformation from the analysis,and followed then bysupporting information oflesser importance? Or is thestudent meandering from oneidea to the next with little orno sense of the hierarchy ofimportance of the informationto be communicated?

• Is the student reportinginformation that is correct andlegally sound?

• Is the student reporting theinformation in a reasonablyconcise manner, or is thestudent running off at themouth at top speed?If the student is well prepared

and the statement is delivered inconformity with the fourevaluation criteria listed above,then the partner simply can sitback (or stand back) and listen tothe presentation. In othersituations, the partner mustinterject a comment or instructionto redirect the student’s focus andassist the student to get to theimportant parts of the

communication sooner.Questions and Answers: The

second substantive part of thesimulation is the Q & A betweenthe partner and the student. Herethe partner has the opportunity totest the student’s understandingof the case, particular authorities,issues or policies, or the student’swillingness and ability to defendhis or her analysis andconclusions in the face of adverseprobing by the partner. Thefollowing criteria apply:• Is the student easily thrown

off her position? Does she flip-flop in the face of thepartner’s adverse reaction toher presentation?

• Is the student prepared todiscuss and further analyzethe authorities? the publicpolicies? the facts of theinstant case?

• Are her answers direct andresponsive or evasive andnon-responsive?

• Is she able to receive, process,and effectively respond to avariety of questions in aprompt manner?Closing: The partner can wind

up the discussion to keep theexercise within the time limits.

Feedback: The eight criterialisted above give studentsfeedback on a broad range ofpractice skills. Instant feedback inthe form of oral commentsdelivered to each student at theend of the exercise can beeffective. It gives the students anopportunity to comment on theexercise or ask follow-upquestions. A short e-mail to each,or a brief sheet of notes, can alsobe used.

The Positive Pedagogy of Presentations to PartnersMichael D. Murray, University of Illinois College of Law

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Current law students areaccustomed to virtualcommunication. In fact, virtualcommunication in the form of e-mail and Internet dialogue is theprimary means of writtencommunication for the Millennialgeneration. In recent years,however, we have beendisappointed by lapses inprofessionalism by our studentsin these forms of communication.Some lapses are apparent –demanding or dismissive tone,clearly inappropriate content –while others are far more subtleand, in all likelihood,unintentional. Because lapses incommunication have adetrimental effect on legaleducation and law practice, wedecided that a primer inprofessional communication wasin order. We sensed, however, thatthe biggest obstacle to thesession’s success was to identifylapses in professionalism inconduct students genuinelybelieve to be appropriate withoutinsulting them in thoseillustrations. We therefore decidedto have a workshop with studentsto discuss professionalism invirtual communication. We feltthat the workshop environmentwould be informal and non-threatening and that studentsmight therefore discern forthemselves the inappropriatenature of the communication andits potential impact onrelationships with peers,superiors, clients and judges.

As part of our workshop, weset up a fictitious exchange ofemails within a law firm andsome fictitious personal webpages. Both categories includedexaggerated and subtle lapses in

professionalism. We set the stagefor discussing these illustrationsby identifying some peculiarattributes of virtualcommunication that makeprofessionalism conventions lessevident. Specifically, the informaland instantaneous qualities ofvirtual communication maysuggest that concepts ofprofessionalism do not apply. Thepersonal nature of emailcorrespondence, web pages, andblogs give writers a sense ofprivacy that does not exist. Ourworkshop then turns to currentnews stories that illustrate seriousrepercussions associated with afailure to incorporateprofessionalism into virtualcommunication.

We then directed the students’attention to the emailcommunications. The emailsillustrate communication betweensame-level associates, associateand senior associate, andassociate and partner. The writersand recipients were chosen toillustrate the hierarchy ofauthority that exists in lawpractice. The email exchangesinvolved work on a client matterand the content of the exchangeswas designed to reinforceconcepts of professionalismrelating to respect for colleagues,clients and client matters, andlegal processes. The webpagessimilarly implicated issues ofpersonal and professionalcommunication and lapsesassociated with misapprehensionsabout the private nature ofInternet dialogue.

In our presentation, weincorporated a power pointpresentation with links to theemail exchanges and web pages.

The technology is helpful becausewe project slides providingdirection to students while theyturn their attention to the weblinks. Further, the web links allowus to present the virtualcommunication in a realistic -format. As the students examinethe web links we ask them tobreak into groups to discuss thecontent. We then regroup toprovide direction and focus,asking them to consider conceptssuch as respect for authority,respect for business and legalprocesses, and respect for issuesof privacy and/or confidentiality.These concepts then providestudents with some direction onissues to consider with respect toa professional, virtual dialogue. Inthis way, we collaborate withstudents to come to conclusionsabout professionalism in amanner that gives themownership of the solutions.

The workshop’s informal andcollaborative atmosphere,together with some humorousand entertaining examples,achieved our purpose of allowingstudents to ascertain theparameters of professionalism ininformal, virtual communication.The workshop was tremendouslyeffective in bringing to thestudents’ attention whatprofessionalism is, how it relatesto virtual communication both inthe workplace and in their privatelives, and how professionalismaffects their ability to be effectiveand satisfied lawyers.

The Real World: Law SchoolProfessionalism in Law School and BeyondLisa Penland and Melissa Weresh, Drake University Law School

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Dan Barnett (Boston College) will have hisarticle, Triage in the Trenches in the LegalWriting Course: The Theory and Methodologyof Analytical Critique, published in volume 38of the University of Toledo Law Review(December 2006).John Bronsteen (Loyola University Chicago)published a book,Writing a Legal Memo(Foundation Press 2006).Peter Butt (Sydney, Australia) has publishedthe second edition of his co-authored text,Modern Legal Drafting (CambridgeUniversity Press 2006). He has alsopublished an article, Plain Language: Draftingand Property Law, 7 European Journal of LawReform 19 (2006)Christine Coughlin (Wake Forest), JoanMalmud (University of Oregon), and SandyPatrick (Lewis & Clark) recently signed acontract to publish a book. Tentatively titledA LawyerWrites: A Practical Guide to PredictiveWriting & Analysis, the book is a lawstudent’s step-by-step guide to developingobjective memoranda.Kirsten Dauphinais (University of NorthDakota ) presented this summer on learningtheory at the Institute for Law School

Teaching’s conference in Chicago and theAALS Midyear Meeting in Vancouver. As aresult of her efforts in scholarlypresentations over the last year, the dean hasmade her the recipient of an endowedresearch fellowship with the title of AlphsonResearch Fellow.Scott Fruehwald (Hofstra University) willhave his article, The Emperor Has No Clothes:Postmodern Legal Thought and CognitiveScience, published in the Georgia StateUniversity Law Review in late 2006.Jane Kent Gionfriddo (Boston College) isone of the co-authors of the recentlypublished ABA Sourcebook on LegalWritingPrograms.Lisa McElroy (Southern New England) hasbecome a regular legal commentator onCourt TV radio and television, commentingon breaking news items. She continues to bethe legal commentator for the SatelliteSisters, a nationally-syndicated radio showon ABC Radio.Michael D. Murray (University of Illinois)will have his article, Copyright, Originality,and the End of the Scenes a Faire and MergerDoctrines for VisualWorks, published in the

NEWSPublications and Promotions

Publication SpotlightLouis SchulzeTransactional Law in the Required Legal WritingCurriculum: An Empirical Study of the ForgottenFuture Business Lawyer, 55 Clev. St. L. Rev. __(forthcoming 2006); available on SSRN athttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=658525.

Legal Writing courses traditionally focus onlitigation writing. For future transactional lawyers,however, the dominance of litigation writing mightseem to ignore their needs. Should they be learninghow to draft contracts, create corporate documents,or write commercial leasing agreements?

This Article examines whether legal writingcourses sufficiently address the needs of futurebusiness lawyers. It first establishes (by analyzing

results of the ALWD/ LWI Survey) that whiletransactional writing instruction is increasing, it stillis not as prevalent as litigation writing, especially inthe first year. The Article then determines, by meansof original empirical research, the need forinstruction in transactional writing. Based on thisneed, the Article concludes that law schools shouldfocus more efforts on non-litigation writinginstruction. It then canvasses several proposedmethodologies to achieve this goal: writing-across-the-curriculum; the “integration model;” the“expansion model;” and a “hybrid model” whichco-mingles instruction by transactional and writingfaculty in the same course.

CONTINUED ON PAGE 14

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Fall 2006 edition of the Baylor Law Review.In July 2006, he released the 2006supplements for Jurisdiction,Venue, andLimitations (Thomson West 2005) and CivilRules Practice (Thomson West 2005). InSeptember 2006, he released the last sevenchapters of the newly revised and updatedDeskbook of Art Law (Oxford UniversityPress, Oceana Division). The chapters wereon Aid to the Arts, Art as an Investment,Authentication, Tax Problems for Collectors& Dealers, Tax Problems for Artists, TheMuseum Organization, and InternalMuseum Problems. Also in September 2006,he was added as a new co-author for thenext edition of Art Law in a Nutshell (WestGroup 2006) and added as a new co-authorfor a completely revised and updatededition of The Law (in Plain English®) forHealth Care Professionals(Sourcebooks/Sphinx 2006).Sarah Ricks (Rutgers-Camden) co-authoredEffective BriefWriting Despite HighVolumePractice: Ten Misconceptions that Result in BadBriefs, 38 Toledo L. Rev. (forthcoming 2007),which will be excerpted in New Jersey Lawyer

(forthcoming Dec. 2006); and authored ThirdCircuit Clarifies Inconsistency in State-CreatedDanger, The Legal Intelligencer (July 31,2006), which was reprinted in ThePennsylvania Lawyer (Aug. 2006). Shepresented Encouraging Cooperation BetweenLegalWriting Programs and Pro Bono, Clinical,and Externship Programs at the June 2006Legal Writing Institute (Atlanta, GA) and atthe May 2006 AALS Conference on ClinicalLegal Education (New York, NY) (both withSusan Wawrose); and taught a CLE onpersuasive writing to 300 Philadelphialawyers in July 2006.The Suffolk University Law School facultyvoted to increase the number of credits forthe Legal Practice Skills course, which bringsthe total to four credits for the year.Nancy Wanderer (University of Maine) willhave her article, E-mail for Lawyers: Cause forCelebration and Concern, in Volune 21, No. 1,of the Maine Bar Journal, The QuarterlyPublication of the Maine State BarAssociation (Fall 2006).

Quick TipTen Questions for New Lawyers to AskMark E.Wojcik, The John Marshall Law School, Chicago

1. Time.When is the assignment due? Is a statute oflimitations about to expire?

2. Client.Who is the client?3. Format. Should you write an opinion letter, an

internal office memorandum, a brief, or anarticle?

4. Jurisdiction. Is the matter one for state or federalcourt or an administrative agency?

5. Scope. What are the parameters regarding legalresearch, legal theories, or particular issuesrelevant to the case?

6. Facts. Do the facts suggest one or more legaltheories that you should research? Where canyou learn additional facts? Do you have access tothe full case file?

7. Hints. Does the attorney who gave you theresearch assignment have any suggestions aboutspecific research sources you should consult?

8. Methods.Will the client pay for computerized ormanual research? Should you start with thestatutes, or with secondary sources that explainthe larger context of a problem?

9. Discovery.What is the status of discovery in thecase and how is it being compiled?

10. Anything Else?When the attorney finishes givingan assignment to you, ask if there is “anythingelse” you should know about the case or theclient. Often that simple question will lead tosurprising answers and it may be a question toask more than once.

In law practice, one of the mostimportant first steps is to identifythe parameters of a researchassignment. Awriter who doesnot determine the scope and limitsof an assignment is headed fortrouble. But unlike law school,

where students are given a duedate and perhaps a page limit, lawfirms have different needs andconcerns that require students topay attention to factors that theymight otherwise ignore.

Here are ten areas of concernthat will help new associates andlaw clerks determine the scopeand limits of a researchassignment. Showing this list tostudents now will prepare thembetter for practice.

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Next issue: Fall 2007Subject: Methods of Providing Students with Effective Oral and WrittenFeedback on Their Writing

June 2008, Indianapolis, IN

The Seventh Annual Rocky Mountain Legal Writing Conference willbe held at University of Las Vegas Law School, Las Vegas, on March9 -10, 2007Chicago-Kent College of Law is pleased to again welcome legal skillsfaculty and law librarians to a conference on May 18 & 19, 2007, tocontinue the discussion that we began at “The Future of Legal Research”conference in May, 2005.

The Association of Legal Writing Directors’ 2007 Conference will be held atthe University of Denver, Sturm College of Law, on June 14-16, 2007

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_____________________________2008 LWI Conference

_____________________________Regional Conferences

__________________________2007 ALWD Conference

Using the Attorney Mastery ScaleThe scale works particularly

well because:1. Students consistently see how

their writing stacks up to thatof practicing attorneys;

2. Students understand that first-year writing skills varyconsiderably but need toimprove in almost all cases inorder to satisfy professionaland ethical standards ofcompetence, diligence, andzealous representation;

3. Students are motivated to earnhigher and higher scores on thescale as the year progresses;they take real pride in earningbetter scores and in writing like“real lawyers;” and

4. The group as a whole movesup the scale over the course ofthe year, and students seeevidence that they havelearned a great deal in only afew months.The scale does have

drawbacks, including:1. At the beginning of the year,

students understandablyreceive 1’s, 2’s, and 3’s on thescale. They often becomedisheartened until I explaintwo important concepts. First,they are graded on a curve.Therefore, in the gradingcontext, their score has moremeaning in relation to themean than in relation to realattorneys. Second, no one,including me, expects studentsin their first weeks and months

of law school to be able towrite like seasoned attorneys!

2. Some students fail tounderstand the expectation thatthey will move up the scale.When they earn strong earlyscores, they think that theyhave “figured it out,” and theyrest on their laurels. It comesas an unpleasant surprise tomany to find that theircolleagues have surpassedthem on the mastery scale, andtherefore in the grading curve;and

3. Students complain that it isimpossible to earn much abovea 7 on the scale. I agree withthem. I tell them that Iprobably would not receive a 9or 10. However, I hope thatthey’ll strive for 7’s and 8’s.

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