Pre writing

PRE-WRITING: WHAT, WHEN, WHY, & HOW

Laura P. Graham & Miriam E. Felsenburg

Wake Forest University School of Law(c)2012. All rights reserved. Miriam E. Felsenburg & Laura P. Graham

WHY our focus on pre-writing?O In 2007, we set out to explore why

beginning legal writing seems to be so difficult for so many students.

O Through this study, we identified a number of contributing factors, which are reported in our first article:O Beginning Legal Writers In Their Own

Words: Why the First Weeks of Legal Writing Are So Tough and What We Can Do About It, 16 Legal Writing: J. Legal Writing Inst. 223 (2010).

(c)2012. All rights reserved. Miriam E. Felsenburg & Laura P. Graham

The one conclusion that really captured our interest was this:

Students entered legal writing believing that they would be taught a step-by-step approach to legal writing – a “template” or “formula” -- and resisted the difficult “inside-out” critical thinking that is integral to effective legal analysis and writing. Put another way, they focused far more on the product than on the process.


In the next phase of our work, we began to explore how legal writing professors can give our students a “better beginning” by helping them shift their focus from the product of legal writing to the process of legal analysis and legal writing; in other words, how we can increase their willingness to engage in “inside-out” thinking.See A Better Beginning: Why and How to Help Novice Legal Writers Build a Solid Foundation by Shifting Their Focus from Product to Process, 24 Regent U. L. Rev. 83 (2011).


In that article, we identified a number of teaching goals toward this end; the two that have emerged to us as key are:1. Encouraging our students to be more

active metacognitive learners.2. Moving more slowly at the beginning

of the course, to allow students time to learn and practice the process of legal analysis.

That’s where we believe pre-writing comes into play.


WHAT IS PRE-WRITING?O First, what isn’t pre-writing?

O Organizing the points of an analysis

O Outlining a memo or briefO Writing a rough draft of a memo or

briefO So, what is pre-writing?

O A concrete, step-by-step approach to the “inside-out” work that students must do, from the moment they receive an assignment, to arrive at the best answers to the questions the assignment raises.


OPre-writing emphasizes the need for students to alternate between taking a wide view – brainstorming and generating ideas without censoring – and narrowing their focus in light of the requirements of the assignment.

OPre-writing allows (and requires) students to tap into their metacognitive skills (perhaps long dormant), encouraging them to pause frequently to assess their own progress.

OPre-writing allows time for students to focus more on the process than on the product. (c)2012. All rights reserved. Miriam E. Felsenburg & Laura P. Graham

issue holding conciseness parenthetical

short answer captionunder-does-when discussion

roadmap rule statementtransition point heading

factor test IRAC landscapereasoningTREAC mandatory authority rule

conclusion policyprecision analogy

clarity syllogism synthesiscitation thesis sentence passive voice balancing test elements test counter-analysis



THREE STAGES OF PRE-WRITING

1. Getting your bearings. 2. Locating and reading the relevant authorities.3. Refining and analyzing the

narrow issues.Each stage begins with broad, uncritical thinking and exploring and proceeds toward a narrower view.

©2012. All rights reserved. Miriam E. Felsenburg & Laura P. Graham

Stage 1: GETTING YOUR BEARINGS

OStep 1: Understand the story.

Oa broad stepOStep 2: Understand your assignment.

Oa narrowing step


UNDERSTAND THE STORYO All legal problems begin with a story.

So, this should be an intuitive way for students to begin pre-writing.

O Students should allow themselves to brainstorm: Who are the key players in this story? What’s the timeline of the story? What happened here to bring the players to the point of asking a legal question? What questions occur to me as I read this story?

O Students should make notes on the story (written notes, not mental notes!).


What does this step look like?

O In your packet, locate the Memorandum from Alice Morrison to Associate Attorney LAWR-E.

O Read the Memorandum uncritically. O Look at the information about the

Segway i2® provided in your packet. O Brainstorm about the story, and take

notes on your thoughts and questions at this early stage.

O Feedback?


SAMPLE NOTES ON STORY

O Location of events: Intersection in downtown Salem, Graham

O What happened:O Client Byrd going to drugstore on

neighbor’s Segway. O Went through red light and got ticket for

violating Graham’s red-light statute. O Initial questions:

O What’s a Segway i2?O What kinds of things does it have in

common with automobile? (c)2012. All rights reserved. Miriam E. Felsenburg & Laura P. Graham

Sample Notes from Step 1

O Segway i2®O Weighs 105 pounds (much less than

car)O Goes up to 12.5 mph max (much

slower than max speed of car)O 19 x 25 inches (much smaller than

smallest car)O Operated by 2 battery-powered motors

(no combustion engine, no gas)O Holds only one person (car can hold up

to 10)


UNDERSTAND YOUR ASSIGNMENTO This can help rein in overbroad thinking.O What can students learn from the

assigning memo (e-mail, etc.) that might help shape the course of their work?O What kind of document am I being asked to

produce?O Who is the intended audience?O What is the expected tone?O What might be the expected length?O What is the urgency of the assignment?O Are there any limitations on what issues I

need to analyze? (c)2012. All rights reserved. Miriam E. Felsenburg & Laura P. Graham

What does this step look like?OReread the Memorandum from

Alice Morrison to Associate Attorney LAWR-E.

OWhat can you learn about your assignment that might help shape your work going forward?

OMake notes about what you learn.

OFeedback? (c)2012. All rights reserved. Miriam E. Felsenburg & Laura P. Graham

Sample Notes On AssignmentO Date of Assignment: May 30,

2012O Trial date: June 25,

2012O Complete Assignment by: June

11, 2012O Specific Document Requested: Memo

to fileO Intended audience of document: Senior

PartnerO Tone of Document:

Objective, formalO Expected length: Fairly shortO Jurisdiction: State of

Graham


Stage 2: Locating & Reading the Relevant Authorities

O Step 1: Formulate a research plan.O Step 2: Conduct your research and

preliminarily assess what you find to identify the most likely relevant authorities.

O Step 3: Closely read and assess the relevant authorities.

c)2012. All rights reserved. Miriam E. Felsenburg & Laura P. Graham

Step 1: Formulate a research plan.

O Brainstorm about what questions you hope your research will answer, and write them down.O a broad step

O Identify any limitations on your research, and write them down.O a narrowing step

O Write down a research plan, and keep it handy as you work so that you can adjust it as necessary.O another narrowing step


O In the Segway story, your brainstorming session might generate the following written list of questions:O Are there any cases that discuss the definition

of an automobile and why it is a “vehicle” under the red-light statute?

O Are there any cases that discuss whether a Segway is a “vehicle such as an automobile” under the statute and why or why not?

O Do any cases discuss the application of the red-light statute to other vehicles? (Here you might actually jot down some other vehicles – mopeds, bicycles, baby strollers, skateboards, etc.)



O Then you might narrow your research focus by writing down the following:O The assignment involves the interpretation

of a statute, so the statute should be among the very first authorities you consult, if not the first;

O The issue is governed by state law, so don’t spend time researching federal law;

O The decisions of Graham courts are mandatory as to your issue, so consult any relevant Graham cases early, to see whether there is already a case that directly answers your question.



O And you might wind up with a written research plan that looks something like this:O Look for Graham cases that discuss whether Segway

is vehicle such as auto under red-light statute.O If none, look up Graham red-light statute; does it

define vehicle such as auto and does definition help me?

O If not, go to secondary sources.O Look for Graham cases about other vehicles

discussed in connection w/red-light statute. Possible vehicles to look for: moped, motorcycle, skateboard, bicycle.

O Look for Segway cases from other jurisdictions.O Look for cases in other jurisdictions about other

vehicles (see above list).



O Have a carefully constructed method for keeping a record of your research. (We’ll offer some templates for beginning researchers in our handbook.)

O Include “unhelpful” authorities in your record, so you won’t find yourself revisiting them.

O Don’t get lost in “database heaven”!O Periodically pause to skim the authorities

you’re finding.O Begin preliminarily assessing and

organizing the relevant authorities.

Step 2: Conduct your research, keeping good notes.


Step 3: Carefully read the authorities.

O Some keys to effective reading:O Read actively.O Read each authority once uncritically (a broad

step -- no filtering or censoring yet).O Read each authority again with a narrower

focus, this time making a separate document recording the helpful information (rules, factual similarities, etc.) from the authorities.O As you do this, paraphrase to confirm that you

understand the material. (Don’t just cut and paste!)

O Pause periodically to monitor your reading.


What does this step look like?O Find the two cases in your packet:

O Vreeland v. GrahamO Monroe v. Graham

O Read the cases, taking notes in a format that is helpful to you. Identify what you believe are the key aspects of each case that will help answer the question posed by your assignment.

O Feedback?


Stage 3: Analyze the Narrow Issue(s)

O For each narrow issue, construct a chart, bullet list, etc. showing how the authorities you’ve read relate to that issue in light of the facts of your story. O a narrowing step

O Refine your narrow issue(s) based on your careful reading. Write down each narrow issue.O a narrowing step

O Review everything you’ve done so far, to be sure you aren’t “missing” something.O a broad step -- opening it back up one final time

O Determine how you will answer the narrow issue(s).O the final narrowing!


What does this step look like? Automobile Child’s scooter

(Vreeland)Moped

(Monroe)Segway i2®

(Byrd)

size big small not addressed 19 x 25 inspeed up to 100 mph Very slow – no

impediment to crossing vehicular traffic

15 mph max (but much quicker than child’s toy)

12.5 mph max

weight at least a ton very light – not capable of causing serious damage

less than 100 pounds (but much heavier than child’s toy)

105 pounds

operation internal combustion engine

no motor – rider must make contact with ground

has motor – requires no contact between rider & ground; usually self-propelled

2 small battery-operated motors; no contact betw rider & groundself-propelled?

capacity 1-10 passengers 1 passenger 1 passenger 1 passengerdanger to vehicular traffic

serious danger no danger – too light and too slow

presents danger to crossing traffic

presents danger to crossing traffic

result subject to statute by statute’s own terms

not subject to statute; presence of motor not determinative

subject to statute; presence of motor not determinative

??????


Now students can begin the writing process!

O This is the first time the students should be thinking in any detail about what the final written product will look like.

O When they are confident about the content of their analysis, they can focus more easily on organization, format, and style.

O IRAC seems very intuitive when students have done the “inside-out” thinking for themselves.


WHAT MUST HAPPEN TO ALLOW FOR ADEQUATE PRE-

WRITING?O Students need time at the beginning of

the semester to practice pre-writing. O Students need much feedback at

frequent intervals, so they can adjust their pre-writing process.

O Students need to see how pre-writing works in a number of different scenarios.

O This may require significant adjustments to the way we have traditionally structured our semesters.


ANECDOTAL EVIDENCE OF THE BENEFITS OF PRE-WRITING

O As to the quality of the final product:O Much better in terms of substance.O Typical struggles as to structure and style.

O As to the quality of the students’ overall first-semester experience:O Greater confidence.O Higher satisfaction with course.O Increased ability to recognize and move

past obstacles on their writing journey.


Sample student commentsO“Professor Graham is awesome at

breaking things down into simple steps that are very easy to follow.”

O“[Professor Graham] takes the time to break difficult tasks into simple smaller parts.”

O“I liked that Professor Graham used the Goldilocks principle for covering material: not too fast, not too slow, but just right.”

O“We moved slowly, but that helped a lot.”


Stay tuned!

Available Spring 2013!

The Pre-Writing Handbook: A Step-by-Step Guide

by Laura P. Graham & Miriam E. FelsenburgWake Forest University School of Law

Published by Carolina Academic Press700 Kent Street, Durham NC 27701 800-489-7486

www.cap-press.com (c)2012. All rights reserved. Miriam E. Felsenburg & Laura P. Graham

Education

Pre writing