Attorneys—in particular appellate attorneys—spend much of their time thinking about and engaging in legal writing. And, as jury trials and hearings become less frequent, legal writing takes on an increasingly outsized role in deciding legal disputes. So often, though, those attorneys had to learn many of their legal writing skills on the job. But, legal writing education has changed and continues to adapt to teach law students new and better methods for providing the best possible work product.  On today’s show, Beth Wilensky, a Clinical Professor of Law at the University of Michigan, joins Todd Smith and Jody Sanders to talk about how law schools are responding to the increasing emphasis on legal writing and how they are training the next generations of advocates. Professor Wilensky also discusses her transition process from legal practice to teaching legal writing, and provides strategies and resources for practicing lawyers to improve their own legal writing and mentor others as they progress in their legal writing journey.

Listen to the podcast here:

Teaching and Learning Legal Research And Writing | Beth Wilensky

Even though we are the Texas Appellate Law Podcast, we believe that good advocacy does not have state line borders. We have one of our few, but hopefully not too few in the near future, out-of-state guests. Our guest is Professor Beth Wilensky who is a Clinical Professor of Law at the University of Michigan. Beth, thank you for being with us.

Thanks so much for having me. 

For our readers, a lot of them have gone to Texas Law Schools and probably don’t know a whole lot about you or the University of Michigan. Can you tell us a little bit about yourself and your background?

I teach almost exclusively in Michigan’s Legal Analysis, Writing, and Research Course. Our first-year course is called Legal Practice. I’ve been doing that for years on the faculty teaching this class. Before that, I practiced law at Akin Gump. I was in DC, but I still think of it as a Texas law firm as people have been around for a while, as they tend to do. In fact, I visited the Texas offices a few times while I was practicing law. I did mostly administrative and appellate work while I was there. The thing that made me happiest.

The only part that I still miss is getting to sit in my office, think about, research, and write a brief on attorney legal questions. I did that and then me and my husband, he is a Mid-westerner, we landed back in Michigan and I took this position at the University of Michigan Law School thinking this will be fun to do for a couple of years and I’ll figure out what I want to do. Years later, it turns out something that I am passionate about doing is teaching legal analysis, writing, and research to law students.

Do you teach that one class to multiple sections or do you teach some other writing-based classes as well?

Almost exclusively to the first-year legal, it’s a required first-year course. I teach two sections of students of about twenty students each, and I have them all year so I get 40 students I get to know well. Not because there’s only 40 of them but because the model that we use involves lots of individual meetings with my students to talk about their work. I have taught a smattering of other classes as the need arises. We have a problem-solving initiative that I co-taught a class in, and not only the writing topic, and I’ve taught some fun mini-seminars in my home which is a Michigan thing where the faculty get to pick a fun law adjacent topic and you have 10 to 12 students come to your house for dinner about six times over the year and talk about stuff. Mostly, it’s legal writing.

For those of us that practice, I spend a lot of time legal writing and thinking about how best to write but I’ve never spent a lot of time thinking about teaching legal writing. How was the transition process for you going from practicing to then teaching it to someone?

It was rough. I often think back to the students I had my first year of teaching and I’ve poured my heart and soul into it, and I still feel bad for them. Fortunately, there’s a steep learning curve. In my second year, I was better. In my third year, I’m even better than that. There’s a different approach that you take to giving somebody feedback and practice, for example. I was a mid-level associate when I left Akin Gump so I’d had junior associates and summer associates doing work for me. I had plenty of experience giving feedback to junior colleagues in practice and that was somewhat helpful.

The world of moving into teaching legal writing to first-year law students is quite different partly because there’s a difference between somebody walking in the door to law school who knows nothing about how to read a case, how to research, how to synthesize rules from cases, and which courts bind other courts. What do you do if you’ve got a 9th Circuit decision that’s deciding a question of California Law? Is that binding on a California State Court? All of these things that practicing attorneys tend to know that first-year law students don’t. Giving feedback on writing that a law student does, it’s a different enterprise than giving feedback to someone in practice for a lot of different reasons.

There are overlaps, especially if you’re the practicing attorney who is committed to mentoring and helping grow the junior attorneys that you work with. The attitude that you bring to providing them with feedback on their work is hopefully quite similar to the attitude we bring, which is an attitude of we’re here to help. We want to help you get better and develop the ability to recognize some of the things that we’re pointing out on your own so that you can now make those changes on your own in the next thing that you write. Making that shift was harder than I thought it would be. I know how to write, how to practice law, therefore I can teach this. It turns out you have to learn how to teach it. Fortunately, there are lots of great resources out there that I continue to rely on to this day on the pedagogy of what we do when we teach law students.

I can’t wait to explore the pedagogy. All I’m thinking about sitting here is how different it must be than it was when you went to school in the ‘90s. I also went to law school in the ‘90s and think back to my legal writing curriculum such as it was. I also think about I could teach a class adjunct legal writing. I don’t think that what I know in my head translates very well into the classroom. What would you say is the biggest difference between the style curriculum that you took in as a law student versus how your department approaches legal writing in Michigan?

I want to back up and say I do think that adjunct professors can be great. There are great opportunities for them to get involved in some of what we do in teaching at law schools. We can talk about that because part of the sweet spot as somebody who is a great practicing attorney who’s committed to learning like, how do I translate this into what law students? How to teach law students? What are the changes? When I was in law school, my legal writing class was taught by either 2L or 3L. This is somebody who’d never practiced law, hadn’t passed the bar, reviewed IRAC, remembered issue rule, application conclusion, and he said, “Here’s a memo. Here are some cases. Write a memo.”

It was formulaic for the end goal of being formulated so that you could write to the formula. I remember very little about it. It didn’t make much of an impression, didn’t have much of an impact on what lawyer I became. The way that I became a good lawyer is that I had outstanding attorneys that I worked for who were patient and mentored me. When we teach students, my goal is to constantly be thinking about where do I want them to be at the end of the school year?

Anybody who has ever taught for a living will tell you that the first time they do it, there’s a steep learning curve. Click To Tweet

Where do I need them to be at the end of the semester? Where do I need them to be at the end of this three-week unit? What do I need to be doing with them? For example, I started with a formula and I use an acronym called CREAC, which is another version of IRAC. It stands for Conclusion, Rule, Explanation, Application, and Counter Analysis. This is the formula that you always have to use. The point is let’s learn how to use this formula because doing that will help you understand how to synthesize rules across cases. One thing that beginning law students want to do is they can read cases and they can do what I call the book report.

They can tell you what the case says after they’ve got a little bit of experience. Being able to tell you what the case doesn’t say, but when you read 3, 4, or 6 cases, you can say, “This seems to be what courts are doing in this jurisdiction with this legal question.” We had to go deep into that using this formula. When we talk about the E in CREAC, the explanation, what we’re doing there is not just can you get the words on the page that describes this court decision, it’s, can you recognize which facts from this case mattered to the outcome? We’re using it as a means of getting students to engage in legal analysis. My view is that most attorneys are doing a version of this in their heads even if they don’t realize it.

You both are experienced attorneys, you read cases, and you can read 5, 6, or 7 cases without even thinking about it, get to the point where you say, “I see what’s going on. Here’s the key point that I want to bake. Here’s a rule that I can extract that I can argue to a court is what it ought to do.” We break that process down into very small discrete steps so that then, later on in the semester, we can say, “Let’s play around with it.” You don’t always have to do exactly this in exactly this order, but in learning how to do this in a particular way you’ve developed some skills that enable you to recognize some broader themes and how attorneys go about analyzing a set of legal documents. That’s one example of how we do that.

That’s almost like a practice course because that is a hard dose of reality in terms of what lawyers do day in, day out, especially in today’s world where it’s not going off and taking depositions. You’re doing a whole lot of legal analysis. I’m sure it’s the same in Michigan and many other jurisdictions as it is here. I would like to say that lawyers are professional writers and you’re doing that analysis all the time to convey and trying to persuade the court at whatever level it is that your position is correct. What you’re describing is something that Jody and I do on a daily basis in our practice.

At least my experience and most people I know who practice law or write for a living have the experience of thinking like, “I know what I want to say but let me write it.” Writing it, you figure out, “I’m not as clear on this one point.” If I can’t get the words to come together in the right way in the page, it may mean that I don’t have a good enough understanding of what I want to say. The writing as being part of the thinking process and this is recursive, “I’m going to think about it then I’m going to write. The writing is going to help me think about it more and realize where do I have gaps?”

De-synthesizing the rule across the cases, and that skill is one that I had to develop over the years. As you said, reading multiple cases and coming up with a-ha, this is where we’re going and this is what we need to talk about. That is not where we spent our time in my legal writing class in law school. It was, “Here’s the legal topic that we want you to write your memo on. Here’s the legal topic we want you to write your appellate brief on, and here are the cases that you need to go find.” It wasn’t synthesizing all that together and coming up with an analysis. I love that you are digging into that because that is such an important skill, no matter what type of law you practice, but particularly litigation practices and appellate practices. Every day, that’s all you do.

You got to be able to cut through the flow. If you see a pattern after reading half a dozen cases, you may not need to go on and read 20 or 25 cases to get the gist of what’s going on. In the real world practitioner, you don’t always have time to read 20 or 25 cases. You need to pick that pattern out much faster. That’s great what you are doing as far as the approach. It’s a fabulous skill to be teaching at the first-year law student level.

My students are doing their first big research assignment and I’ve been in individual conferences with each, one after another. One of the things that they all want to know is like, “Will I get faster at this? It takes me forever.” They’re already faster at reading a case than they were, in a week. I get this huge list of cases that is relevant and help them figure out, “How do I identify which ones I want to skim? How do I skim a case? Which ones do I need to read carefully? How do I read carefully?” Much of this, I tell them over again, “It takes practice.”

Writing is a muscle. The more you write the better you’re going to get at it. Reading cases, the same thing. Being able to identify patterns when you’re reading cases, the same thing. They don’t have enough law under their belts to be able to pick out the pattern because they haven’t yet gotten exposed enough to how judges make decisions. That’s one of the things that we spend a lot of time talking about. What do you think is motivating this judge in this case? What does that tell us generally about what judges care about? Things like that.

That is a great perspective to bring into it. That’s something that I didn’t spend a lot of time on learning. You learned the form and, as you said, the IRAC formula and you wrote to that formula but you didn’t spend a lot of time thinking objective or subjectively necessarily about what is the decision-maker? What’s driving them in this particular case? It’s, what does this case say? What’s the rule? How do we put it in here and throw it in? I love that you deconstruct that stuff to come up with that.

We want them to walk away with transferable skills. If you teach them how to write to one formula that works in this one very narrow. If you have a legal question that’s doesn’t fit these parameters, that’s not all that useful. That only works if they happen to get out into practice and everything they get is a question that looks exactly, not necessarily substantively, but fits within those parameters that you can write to that formula. We want to teach foundational skills that they can use, and lots of different kinds of legal questions and environments will serve them well.

From what you’re telling me and what you teach, it has moved away from the formulaic approach to more of experiential analytical teaching practice. I don’t know if that’s the right words to use for it but it seems like that’s how it has developed because it was very cut and dry. I remember we spent so much time on citation form which is important learning, “These are the styles you need to know, and go do one of these.” “You did one of them, great. Check that box. You’re done with legal writing.” I like that you dig more into the process than the outcome. That’s something that has shifted.

There’s a couple of themes that I try to impart to my students across the year. That’s not about the straight legal analysis but developing as a professional. The writing process is one of them. We talked a little bit about the recursive nature of writing is thinking. You’ve got to think through the problem, then you’ve got to research the problem. At some point, you have to start writing but you also have to leave time to go back and do more thinking. This is one of the things that was the hardest for me in terms of developing as a writer. One of the points in which I made my greatest strides forward as a writer is when I finally got comfortable writing the garbage draft.

Get some words on the page because you don’t have anything to revise until the words are on the page, and getting past that. I don’t want to write the sentence if it’s not going to be perfect and getting this stuff out. Teaching my students how to get your ideas on the page so you have something to work with. Understand that revision is a substantive, essential part of the process. It’s not like, “I need to set aside time to read through it, proofread, fix a little style.” You might need time to completely rethink major parts of it. Writing as a process and something I talk a lot about. I talked to my students a lot about reflection. This is both as a law student and something that I hope will serve them well in their careers.

Spending time taking stock, especially as a junior attorney, you may be getting feedback from 3, 4, or 5 different senior colleagues on your writing. Setting aside time for sitting down whenever you get a breather between cases to say, “I’m going to go back and see what feedback I’ve been getting and see if there are things that emerge.” It’s almost like you’re synthesizing the feedback that you’ve got. It looks like people have been working and are impressed with my ability to do X, but I keep getting the same kinds of comments over on this other thing. Now I know what I need to work on. We do some of that in my class. Thinking of all of the things we teach is part of being a lifelong learner.

TALP 37 | Legal Writing

Legal Writing: Giving feedback on writing that a law student does is a different kind of enterprise from giving feedback to someone in practice.

 

I’m someone who’s been teaching this class for many years, I’m still trying to learn how to be better at teaching it and looking for opportunities to be better at writing. I took on a project a couple of years ago. I’m interested in metaphors and legal writing but I don’t think I’m very good at coming up with metaphors. I decided I was going to spend a summer trying to create and design my own curriculum around the use of metaphors and legal writing because you can never stop learning how to be better at what you do. I want my students to think this way, too.

Is there an element to your course about how to delicately tell a senior partner that their editing suggestions are wrong?

I could use that lesson still sometimes.

It comes up. We can look at it from both directions because one of the things I want my students to learn how to do it is to give feedback to other people. I have a class where we engage in a peer review where one of the things I want them to learn is, how do you make suggestions to someone? One of the things we also talk about is different people have different personal perspectives. I try to point out when I’m identifying something that might be hopefully not unique to me, but whether there are differences of opinions. Some people would write it this way.

It happens, particularly in persuasive writing. Some people would think that’s a little bit too assertive, strong, over the top, or fine with it. I try to point out places where there might be differences of opinions. I invite students to share the differences of opinions.

What do you say when you’re getting some edits from a senior attorney and you think they’re wrong?

I would ask like, “Can you explain a little bit.” “I found this legal writing book by this judge which says X, Y, and Z.” There are delicate ways to do it but it also depends on who you’re talking to.

I appreciate that answer. I meant it as a rhetorical question.

It’s an important skill for junior attorneys.

It is an important skill for older attorneys sometimes, too, when you have to delicately talk to someone and explain to them why their position needs some further thought, perhaps. On the idea of lifelong learners, which is something we should all aspire to, what are the things that practicing attorneys didn’t learn in their legal writing class or things that you see from professional attorneys that you wish that they knew or did differently, or you tell your students, “Here’s a great example of something you shouldn’t do?” Are there things out there that you see as someone who’s teaching a new generation of legal writers that you wish you could impart to older attorneys?

I have colleagues at some schools who like to use horrific examples. I have attorneys behaving badly or producing a brief that’s terrible in every respect. I find those to be not so useful because they’re so extreme. They don’t teach. I find the more subtle things more useful. Again, we have disagreements on this but I’ll show students competing motions or competing briefs that were filed in an actual case. We’ll spend time breaking them down. One of the questions that often arises is, do you think this attorney went too far?

Is this introduction effective because it captured your attention or do you walk away from this introduction thinking it’s too snarky or argumentative? I don’t understand what the story is here. One of the things that I tried to talk a lot about in persuasive writing is, by the time we get to the second semester, students are good at taking the law, synthesizing rules, applying it to facts. They’re not so good at telling the story. We see lots of examples of this. I can show them an introduction that says, “Here are the arguments we’re making in this brief, 1, 2, 3 and 4, therefore we should win. What’s your core theory?”

We have a class where we give them some actual materials from a fight in the Ann Arbor City Council where I live about a zoning issue. I gave them actual emails that real residents wrote. I have them say like, “If you’re representing the residents on this side, what’s your core theory? If you’re representing the residents on the other side, what’s your core theory?” Thinking about the story but other than that, it’s not so much about mistakes. If I went right now to practice law, I’d be a much better writer for having taught it.

It’s because teaching something forces you to break down your process and think about each step. A lot of those things that practicing attorneys naturally do in their heads very fluidly. I have even found that if I’m writing something and struggling with how it comes together, sometimes I’ll go back to the basics and say like, “Does this paragraph even have a topic sentence that works? Does each paragraph have a topic sentence that tells a story?”

These are some fundamental things that a lot of attorneys in most situations will do naturally, but when you’re struggling with something to remember, then I can go back to the basics. I do want to figure out my CREAC, my IRAC, or whatever acronym I learned because what I’m missing here is I don’t know what the issue is. I’m forcing myself to do the IRAC where the very first thing you have to do is write the issue that is going to help me realize that. That’s one of the things that I often find can be useful even for people who’ve got a lot of experience.

That’s a great point. Those of us that have been doing this for years and even less can stand to get back to the basics like that from time-to-time. We talked a little bit about the value of an adjunct professor. If I were going to go into a legal writing program and try to teach, one of the biggest challenges for me is to get it out of my head and figure out, what is my actual process? What are the rules that I’m applying? It would make me not think much about anything else. The way that you learn law is to get into it and get up to your elbows in it. I’m sure it’d be the same for legal writing. The way to improve my legal writing would be to break it down and think about what are the steps I’m going through in this process. I’ve been doing it this way for all these years. Is it the right way or the best?

The more you write, the better you're going to get at it. Click To Tweet

You do a version of that every time you write something to a judge. By that time you get the brief done and turn it in or you write the brief, you are so steeped in the law and the facts of your case. There’s a phrase for writing which is the curse of knowledge. The idea of knowing more about something, the harder it is to explain it to somebody else because you have to say, “If I’m a Texas Appellate Judge and I’m a generalist, what does that judge not know about this very specialized area of the law that I’m writing about?” She certainly doesn’t know anything about the facts of this case unless I tell her what those facts are. If you’re good at legal writing for a judge, you’ve already got the experience of having to think through, “What do I need to do to explain to this person the story of this case?”

We do something similar when we teach. I have to think through, how do I need to break down the process that I go through? My students were working on a research assignment and there was an interesting case which had a weird notation in Westlaw that’s an important case. I had students who asked about it because they couldn’t figure out what to do with this notation. I wrote an email that said, “Let me walk you through my process of figuring out what’s going on, and is this case still a good law?” I went step-by-step. It’s something that I would have done quickly clicking through the various things I need to get through online but forcing myself to break it down for them is a useful way of thinking about how all of these things come together.

My dirty little nerd secret that I don’t tell people is every time I read a brief that I’ve written but right before I’m done, one of the last things I do is read the topic sentence of each paragraph of the argument section by itself. If it makes sense, it is at least cohesive because if I can read the first sentence of every paragraph and follow along the logic that I’m following, it means that it’s okay. That’s how I would like to do that before I send something off.

Jody, you can teach this class that I teach. That’s one of the things I teach my students. I teach them to read out loud. When they’re looking for sentence-level things and little typo mistakes to read out loud backwards sentence-by-sentence because then you can’t focus on the substance. You have to focus on the sentence structure. The topic sentence thing is an abbreviated version of a reverse outline that I teach my students. Some students either don’t like to outline or do, but it still doesn’t quite come together. I have them outline something and after they’ve written it, a lot of times, the errors and some of the organizational things will rise to the surface.

What you were saying, Beth, a little while ago reminded me of a very important lesson that all lawyers need to keep in mind which is, know your audience. It’s one thing to be writing for a Texas trial judge who doesn’t have a law firm and won’t see your summary judgment motion until they show up for the hearing, which happens here in Travis County versus writing an appellate brief for an intermediate Court of Appeals or the Texas Supreme Court. Those are even different skillsets between those two courts. You’re going to break your process down a little differently depending on who your audience is.

We also talk about not just writing to a judge but also how do you write to a client? There’s a difference if you’re writing to a client who is coming to you for help as a small business owner who’s got a question about his lease because the landlord doesn’t know the law versus the client who is the general counsel of a major corporation. What can you expect them to already know about how the law works? Know your audience is a big theme of any legal writing class.

Particularly tone and that’s one that a lot of practicing lawyers could use a refresher course on from time-to-time because it’s so easy as you get further along in the practice of law to forget about your tone sometimes for a whole lot of reasons. Often, you see a brief, whether it’s on a case I’m working on or not, and your first reaction is, “Whoa.” If I’m having that reaction as the advocate, the judge is having that same reaction because they don’t want to be dragged down into some nasty, legal slap fight.

It’s almost like there’s a little element of ethics in what you’re doing, too. It might be beyond a little element. You clearly can’t do certain things in your legal writing like name call or impugn the credibility of the judge, that sort of thing. I’d like to think that you don’t see that thinking in your students’ writing. I’m sure over time, they develop a sense of what’s appropriate/persuasive and what’s not.

It comes up the second semester. I tend to notice more when we get to persuasive writing students who don’t want to be forceful enough when it comes to the law. You can say like, “The court should do X,” not like, “Here’s what the law says so maybe they’re right.” Encouraging them to say like, “The way that lawyers would say this is the court should grant the motion for summary judgment or they’ll phrase a rule in a way that suggests some wiggle room when they don’t need to.” I always have some students who come on too strongly. It’s often because they’re not yet sure.

They’re still trying to figure out how do you use the facts and the law to make a forceful argument? This is where showing them examples from the real world where they’re not representing a party that you can see is a much more concrete way how some of those things, that you think this attorney is a little bit too convinced of the righteousness of their position. There’s nothing wrong with being convinced of the righteousness of your position even when you are crystal clear. How could anybody disagree with me? Presenting it that way doesn’t make you look more professional. It doesn’t make your argument stronger. It distracts you from how strong your argument is.

We have a lot of fun with that because sometimes, we have heated disagreements in class about like, “Is this too much or I like this. This is gripping. It makes me want it even if the judge wants to be on this person’s side.” We talk about what kinds of things are completely out of balance in terms of appropriateness with taking on the judge, taking on opposing counsel, as opposed to taking on their arguments, and why snark tends to not work. There are gradations and disagreements about what is professional, what is not professional, and we talk about the ethics.

Ethics comes up a lot when we talk about which cases can I use, how can I frame them, and which cases should I not use or is it bad if I don’t address that one? It’s bad not because it’s going to look like you’re hiding something, it’s because the other side is going to bring up that bad precedent. The problem is that you’ve now squandered the opportunity to take the case that you don’t like and frame it in a way that’s less damaging to your side.

All the things that practicing attorneys need to remember themselves. I even sometimes write that angry draft. You write the angry draft of something. You set it down, and either you pick it up later, read it and go, “Whoa,” or you’re going to write it, get it out, set it down, and then write the actual draft.

Be very careful that you put in big, bold letters at the top angry draft so you don’t accidentally send that one.

I don’t even save them. I’ll write them, print it out, throw it away and it’s cathartic.

TALP 37 | Legal Writing

Legal Writing: Writing helps you think about an argument more and realize which parts of it have gaps.

 

Those are all great points. Of course, there’s the creative use of ellipses. It’s more trouble a lot.

What did you leave out here?

Where are you in the quote is very important sometimes.

I teach my students it’s fine to use an ellipsis as long as what ends up on the page is faithful to the meaning of the original. Sometimes it was helpful for your reader to cut out all the stuff that’s not relevant but you have to make sure that you ended up with something. Again, there’s an ethical issue there but the bigger problem was your credibility which is shattered for the whole case.

The first-year law students come to appreciate this point yet. If you lose credibility and you’re writing with the court, that’s going to follow you. Not only in that case but beyond. We see it all too often.

Some of my students think, “I’m going to go off and practice in a big market because it matters so much. No one is going to remember me from one case to another.” I explained to them like, “Every single market is small. If you’re practicing in New York City, you’re going to run into the same people. You’re going to develop a reputation, not with opposing counsel, potential clients, and colleagues but with judges.” You should think about that. It should impact how you decide to make an argument.

That’s so true. Texas has 100,000 lawyers. Todd and I would agree that on the appellate side of things, you do see the same lawyers and the same judges time and time again all over the place despite how big our bar is.

Students get this in some legal ethics class that they take later on but what do you do with your client who is pushing you to make the argument that you don’t think you should be making? You think that there’s a problem there, who wants to get a reason reading a lot of stuff? Once I cut out this language from the quote, who’s taking a look? You’ve got a little bit of an issue with the client, but your reputation is on the line because you’re the ones signing the documents.

Those conversations don’t ever get any easier. What are things that attorneys need to keep in mind when you’re working with someone who’s fresh out of law school? As a young legal writer, what are the things to remember when you’re mentoring them and trying to give feedback and help them learn?

First, it’s important to figure out what’s your relationship with this junior attorney. Is this like a one-off thing that I’m working with this person on once or is this something that I’m going to be working with this person on for a longer period of time? The best mentors are very intentional about what they do and how they go about doing it. We think about who our audiences are when we’re writing and figuring out how to frame something on the page. If I’m giving feedback to someone who’s working with me on one assignment, I might be thinking differently about how I can be helpful to that person than if it’s someone who I know I’m going to see a lot and we can be a little more intentional about where do you want to go.

I’d say first of all, ask. If you are working with a junior associate or a junior attorney, I would offer like, “I want to be helpful to you. I want to help you grow and develop as an attorney. Here are some ideas that I have for how I can do that. If you’re giving me work, I’ll give you some feedback on everything, but we’ll talk about a couple of individual things and think about where you want to be six months or a year from now. Are there things that you would find helpful, junior attorney, that you feel like you want to work on? You’ve got a second-year associate who says I’m ready to start taking depositions. How do I get to that point?”

I would ask both for your benefit and also because junior attorneys need to be reminded and encouraged to think about their professional development. It is very easy to get out, pass the bar, you have your first job, there’s a lot of work. Sometimes, we forget to sit and reflect. I tell my students twice a year, it might be Daylight Savings Time. Once a year on your birthday, you set aside time that week to say like, “What have I done this past year? Where do I want to be going? What are the things I’d like to do in the next year in terms of developing?”

I would say it’s a conversation to figure out how can I be the most helpful? What mentor does this person need? When you’re practicing law, you don’t often have the opportunity to sit and reflect while you’re working on the document. The feedback that I give to my students is more measured. I give them feedback, I try not to make changes in their work with a few rare exceptions. I tend to view a lot of margin comments where I point things out. I ask questions. I suggest like, “You should go reread this part of the case. I’m not sure you’ve got it right.” That’s a luxury that you don’t have in practice because you’ve got a deadline; change it and file it.

One suggestion that I often make to practicing attorneys who do want to mentor and help along junior attorneys, in their writing in particular but also within the realities of a busy law practice, is, go ahead and make the changes if you need to do that. Once the brief, deadline, everything is filed, you can say to the junior attorney, “Here’s something we could do. Why don’t you take the draft when I made all these changes?” Identify a couple and say, “Let’s have a conversation about why I made those changes. I want you to see why do you think I moved these paragraphs around, cut this argument, or I changed the way the sentence is framed?” There are still times within the practice of law to have those conversations but not before the thing is filed. That’s something that fits within the realities of law practice that still enables you, as the senior attorney, if necessary, to rewrite stuff that needs to be rewritten, but still recognizes that there’s a benefit to talking about it afterwards.

That’s great advice because it’s so hard to find that balance, especially in a time-sensitive situation between wanting to give feedback, help someone to find their own voice, and having to get it done and get it out the door. It’s such a tough trade-off.

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It is so important no matter what the size of the firm, to develop your junior lawyers. For them to understand the why of things. The culture of a law firm is you got to do it the partner’s way or the senior partner’s way. Don’t ask questions. Don’t ask why, just do it. That doesn’t help the junior lawyer develop themselves as a lawyer. It’s bad for the firm, too. We have to encourage the senior leaders at all levels who do something, that you’re describing and take the time. If you’re going to redline somebody’s draft, bleed all over it with red ink, or make the changes in the interest of a deadline, visit with the junior lawyer, explain your position, and have something to back it up other than that’s not how I do things.

I’ve been on the receiving end of some red writing before and you look at it, some of them are changes that make sense and some of them are like, “That’s an incredibly personal comment for no good reason.”

I am very lucky. I lucked into working with some outstanding attorneys since it was Akin Gump. Dan Joseph was the attorney that I worked with for most of my time at Akin Gump. When I would send something to him, he would send it back down to me. He might change two words and then he would write two paragraphs in the margin to me explaining why he changed those. That’s very unusual to have that person saying, “I want you to know what I’m doing and why I’m doing it.” It was a wonderful experience.

I’ve been lucky to have some very good mentors that are the same way about giving substantive feedback even in-person as we’re going through a draft. “Sit down, and let’s talk about I have one view on this, you have another view. Let’s figure out why we have those views and come to a resolution.” Those are so valuable and have a safe space to have those conversations because so often, it doesn’t feel like a safe space when there’s someone who holds so much power in a law firm, a client relationship, whatever it is, and someone who’s starting out on their career. It’s hard to sit in there, feel the imbalance, and want to speak up.

Good point about the client. Sometimes, no matter what your level of seniority in the firm, you have to have those conversations with clients about the reasons, as you were alluding to earlier, why things can’t be a certain way, why you can’t take a certain tack. It all comes back to communication and trying to be a unified team for the benefit of your client and being a persuasive advocate which puts your client in the best position ultimately.

Beth, since you’re here, we wanted to talk a little bit about legal academia. It’s not something that Todd and I have much experience in or have a foothold in but it’s something that a lot of lawyers or law students may have an interest in doing either professionally like you do or as an adjunct. Where are some places or some things that attorneys and law students might need to think about if that’s the path that they want to go down either informally part-time or more as a full-time job?

The initial answer is the same either way, which is get a lot of good practice experience under your belt. The standard first-year legal writing course tends to be litigation focused. Although that works well because so much of what I teach does transfer to lots of different writing contexts where the converse isn’t necessarily true if we tried to focus more on transactional law. What that means is that there are lots of opportunities. If you are a transactional attorney, you may find that there are lots of opportunities to teach on an adjunct basis or there’s more of a need for people with that experience. Either way, no matter what your practice background is, I suggest reaching out to your local law schools. Usually, there’s a director of the legal writing program, a director of experiential education, or an associate dean and say, “Here’s what I do.”

First of all, law schools often need volunteers to do things like judgment court competitions. Even if you’re not interested in going into academia, I’m going to put a plug into your audience, you’ve got a bunch of appellate attorneys in Texas and I have no doubt that you’ve got law schools there who always need to have people helping law students. It’s about developing the future of the profession and it’s fun to be the judge in a moot court and to help law students. I do suggest that if you’re going to do something like judging in a corridor or go speak to a legal writing class that you ask the professor like, “What things would you like me to focus on?

Either in my comments, in my feedback, things like that. What would be most useful to you pedagogically” Generally, when I’ve had outside judges, local attorneys come in, they’re terrific and fabulous. Sometimes we have a conversation going about disagreements like you should do it this way so students can see some of those things play out. Reach out, start volunteering, and then make your interests known. “If you ever need someone to step in and teach X, Y, or Z, here’s a bunch of stuff that I could do. If you need someone to come guest lecture or demonstrate how I go about thinking through an appellate brief, I’d love to show you one I filed and talk through some of the decisions that I made.” Those can be great classes. Frankly, we’re all in a Zoom pandemic world, it doesn’t have to be Texas Law Schools, you can Zoom into anywhere. Those kinds of things. If you’re interested in making the transition to teaching formally, whether on an adjunct or parliament basis, the next thing that I’d suggest is getting familiar with our pedagogy. There are some ways to do this. There’s a ton of great writing out there on what we teach and how we teach it. Everything from the cognitive science behind how adults learn, how do you put together a good class, and how do you give feedback on student works. There were a couple of organizations. There’s the Legal Writing Institute which you can Google and find easily online.

There’s another one called the Association of Legal Writing Directors which also has a journal. I’m on the editorial board of that journal. There’s a lot of interesting stuff that gets published both about what makes for good legal writing, analysis, research, and also how to teach it. There’s a newsletter called The Second Draft. There was another newsletter called Perspectives. Both have shorter essay teaching ideas. I published one about a new peer review exercise that I tried in 2019 that worked well. Getting your feet wet so that you have a sense of, “I know how to do this and how to practice law. How do I teach students how to do this?” It’s the next big thing I would encourage interested attorneys to do.

What about people who are interested in going beyond getting their feet wet and doing the things that you’re talking about, which are fantastic, but even being like you and making a career out of it? Do you have any different advice for those people? Our experience is similar in that many years ago the way that legal writing was taught is a little different than the way it’s taught now. Not only in terms of the approach to it but also the allocation of resources. I don’t want to say that law schools weren’t serious about it before but it seems like the profile has been raised.

The law schools weren’t serious about it before. It’s hard to make the argument that they were serious about it.

Is it fair to say that the profile has been raised? You hate to think about the legal writing professors as being treated as a different class of instructors but that’s still pervasive and that’s a view that needs to be broken through.

I appreciate that a lot. Two things are true. It is true both that legal writing is the profession and has improved tremendously. As a result, the law student’s education around legal writing, which is the core of what most lawyers do, has improved. Those things go hand-in-hand. The more law schools offer their legal writing faculty, the more they can attract and keep outstanding legal writing faculty. That makes a big difference for the quality of legal writing education that law students are getting. At the same time, it’s also true that there is still more work to be done around things like pay and job security. I’m fortunate that at Michigan, I have a long-term contract.

TALP 37 | Legal Writing

Legal Writing: You have to think through the problem, research the problem, and then at some point, you have to start writing, but you also have to leave time to go back and do more thinking.

 

It’s a seven-year because I’m a renewable contract. I feel secure. It’s not tenure. At the same time, I do write, do some scholarship because I enjoy doing it. I have a small peace of mind job requirements or writing. The main thing that I do is teach and I like that. The expectation for me is that I get renewed as long as I continue to focus on being an excellent teacher. There are some law schools that have a unitary track where it’s tenure across the board and the same expectations for a scholarship that you see on the more traditional, non-experimental faculty side. There are some law schools that still have a ways to go in terms of establishing the conditions of employment that are going to attract outstanding legal writing faculty.

Going to law school in early 2000 when I did, you have the separation and almost a different attitude between the doc triangle and the practice faculty. That’s passed down to the students. Looking at what I have done in practice, the skills that I use and the skills that I want the most for new attorneys coming in, legal writing and procedure are far more important than any of the substantive topics that we covered hands down.

As somebody who teaches, this is essential. There are two primary reasons I’m as happy as I am at Michigan and why I’m still here. I was texting with my associate dean and he said, “How are things going?” I said, “Things are rough. We’re in a pandemic but I still love being here. I still love my job.” I love the four people that I live with which is my husband and kids. What all you can ask for? We’re all stuck together. The things that make it so great are I feel respected on my faculty. I’m viewed as an expert in what I do in terms of my participation in faculty governance. I have colleagues on the non-experiential side who almost unanimously view what we do as being an essential part of the law school experience. The other thing that makes it great is that we have great students. Those two things together are essential.

We appreciate the time that you’ve spent with us, professor. To wrap up the episode, what’s something that would qualify as a war story coming out of the legal writing program? We’ll take a tip or whatever you have to offer.

I’ll share a story that I shared. Not from my teaching experience but it’s a story that I tell my students right before their big oral argument on the summary judgment motion and the students are nervous. They’re getting up before someone who’s a local attorney who’s going to be the judge. I tell them about the case right when I got admitted at the bar as a baby lawyer in DC. The very first thing I did is I went out and I got a pro bono case because I knew that I wanted to do it. At that time, I had a partnership in DC with the Children’s Law Center and I wanted to take one of these child welfare cases.

The case that I got was a doozy. It was a family that had a lot of interaction with the child welfare system. Some sad circumstances, as you might imagine. The client that I was assigned was a five-year-old girl who had been raised from birth by a foster mother. The social worker agreed that the best thing at this point would be for the foster mother to adopt her. The foster mother wanted to adopt her. This little girl had had very little contact with her birth parents. We had to do a termination of parental rights. This is the case that I tried in DC Superior Court over six days. One of the very first things I had to do, I put the social worker on the stand and I had to get all of the social worker records admitted under the business records exception to the hearsay rule.

I need to get my evidence class. I remember it all. If you’re a trial lawyer, there’s a foundation you have to lay and there’s a bunch of questions you have to ask like, “Did you keep these? Is it in your business practice to keep records like this? Yes. Did you keep these records as part of your business practice? Yes. Do they accurately reflect? It’s been a while.” I stopped, I looked at the judge, and I said, “Your Honor, I moved to have these records admitted under the business records acceptance rule.” The judge looks at me and goes, “You missed one.”

I thought I laid the foundation. She let me twist in the wind a little bit. I was like, “If I can’t get the social worker records, the whole case falls apart.” The judge finally, after letting me stew and she’s like, “Do you want to ask this?” I’m like, “Yes, that’s exactly what I want to ask.” I got the records admitted. I defeated a motion for a directed verdict at the end of our case. We ended up winning the case. I got this card from this little girl, like, a personal picture, which I still have. I tell my students this story because the takeaway is you can recover. Things happen in oral argument at trial. You feel like, “I’m never going to get past this.” Two minutes later, everybody in the room has forgotten about it. I still remember it years later but you can recover. That’s my story.

That is a great thing to remember because at the moment, it feels like the worst thing in the world.

Everybody who is licensed has an equivalent for that one.

Beth, the minute that you and I first got to know each other was through Twitter and surprisingly, there are a large community of legal writing professors out there on Twitter. Can you tell people how they can find you and some of the other people that are out there that are good followers if you want to learn more about this topic?

My Twitter handle is easy. It’s @BethWilensky. Nothing very creative there but I’m easy to find. There are some hashtags which will get you into the Professional Legal Writing Professor Community. I have tweeted under #LRWProf. You’ll find some threads if you’re interested in more details about how to become a legal writing professor. You’ll find a lot of faculty from that direction. If you search #LRW, you’ll also find a fair number of us who are active on Twitter because we’ll often attend to that.

I also know that people use #LegalWriting which will get you not legal writing professors but a lot of people who think about legal writing on a professional basis like all sorts of attorneys. I encourage people to come join us. I’ve found Twitter to be surprisingly engaging, educational, and fun. I developed some great professional and personal friendships. In spite of some of the things that are not great about Twitter, overall, I’m happy that it’s a space that I’ve become active in.

This has been great. We sure appreciate that you have time to come along and be an out-of-state guest for us. It’s been very educational and we’re very grateful to you for taking the time to be here.

Disclaimer: This transcript has not been proofread or edited to written-article standards. If you have any questions or see any discrepancies, please let us know by sending an email to hosts@texapplawpod.com.

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