Professors and fellows who teach legal writing provide extensive feedback on papers. These comments should stimulate the students’ reflection and encourage them to rethink their writing process. When effective, comments act as a conversation with the student to encourage necessary reflection instead of serving as a series of demands for students to address their problems. This chapter discusses the general goals of providing feedback on student documents, specific writing goals, and techniques to help the students become their own editors.
A. General Goals of Commenting on Student Papers
The ultimate goal of a professor working with students on legal writing is to teach the students to think critically, analyze the law, and craft clear and concise documents. However, the professor should not simply ensure that the document written for the class is effective; the professor should make sure that the student can translate the writing process to any legal document written in the future. The goal of a professor’s feedback should be more than having the student “correct” the current document to meet the professor’s expectations; the document is the tool through which the professor can teach effective writing strategies. As a result of considering the professor’s feedback, the student should therefore become better able to critically read her own writing so that she can consciously craft effective legal documents on her own once she is in practice. For the professor, the trick is to encourage the students to think about their writing critically instead of simply rewriting the particular document for class.
1. Commenting as a Professor vs. Redlining as an Attorney
The goals of providing comments on legal writing in a course differ from the goals of an attorney editing a legal document. A supervising attorney is most concerned with the product because it is crafted for a specific client; he will therefore “redline” a draft to correct the document and transform it from a draft to a final so that it can be delivered by a specified deadline. On the other hand, a teacher helping a student in class should be concerned more with the student’s writing process than simply with the final product. By helping the student with her process so that she can think for herself and critically review her own writing, the professor can help the student improve the specific document at hand, but more importantly, to produce effective legal documents in the future and become a self-editor. The ultimate goal in the comments therefore is not to “fix” the problems or to make sure that the students write “the perfect memo.” Instead, the goal is to force the students to step into the legal reader’s shoes while they maintain their own voices in their writing. The professor should think of her comments as a constant conversation with the students to reach this ultimate goal so that when they are finished with the course, students are able to effectively rewrite their own documents without assistance.
2. The Objective Reader
If the professor approaches commenting as an editing task, she will wind up superimposing her ideas on the students’ writing instead of stimulating them to thoroughly explore their arguments. Professor Nancy Sommers wrote a wonderful article about responding to students’ writing. In the article, she explained the importance of avoiding “appropriating” the students’ text by approaching a student’s paper with the goal of understanding what the student is trying to do instead of superimposing on the paper what the professor thinks the student should be doing. In a similar approach he refers to as “The Believing Game,” Peter Elbow suggested that we assume the paper is working until proven otherwise. Instead of reading critically, as we are used to doing with most legal documents, we should try to read each student’s document from the starting point of believing in the argument.
By following Sommers’ and Elbow’s advice, the professor can provide feedback as an objective reader instead of as a lawyer who would have written the document differently. Try to believe in the student’s argument, until proven otherwise. Don’t try to substitute your analysis for theirs. If the student’s analysis is clearly wrong, frame the comments from the standpoint of the legal reader’s perspective and what the reader would find confusing or inaccurate about the analysis and suggest multiple possible paths that the student might take to improve or correct the analysis. If the professor provides just one possible path or gives just one sample document as a model, both the professor and the student are likely to wed to the “correct” document and the student is deprived of her voice in the writing process. Instead, try to brainstorm various ways to approach each document, including different ways to organize, analyze, and conceptualize the issues, and consider whether and how a novel approach taken by a student can still lead to an effective final product. Throughout the commenting process, keep in mind that there is no one right way to write any legal document and that framing comments from the perspective of the intended audience of the document can help the student to find the best way to communicate his or her intended meaning without having the professor appropriate the student’s text.
B. General Commenting Techniques
A number of commenting techniques can be effectively used to engage the students in a conversation with their intended audience and to help them become their own editors. For each document, decide upon your pedagogical goals and focus on those in your comments. Each legal writing program and professor will have a core set of common writing goals for the course as a whole, as well as a narrower group of specific goals for each assigned writing project. In addition, the professor’s comments on a draft will be different than comments on a final document.
1. Pedagogical Goals for Written Documents
Before giving students a writing assignment, the professor should set out specific goals for that assignment. Teach towards these goals in class, making sure that the students are aware of the specific goals for the assignment, and then use those goals to focus the comments on each student’s document. Some goals are common to all legal documents assigned in writing courses, and some goals might only apply to specific types of documents, such as memos, briefs, or scholarly writing, or to different stages of the students’ writing process.
a. Common Writing Goals
All analytical legal documents should be well-organized, grounded in legal analysis, use concise language, and meet the purpose for the intended audience. Effective comments will respond to strengths and weaknesses in each of these areas, assuming that they have been covered in class before the students’ submission of the assigned document.
Large-Scale and Small-Scale Organization
Legal documents should be organized around the law itself. It is therefore helpful for the writer to provide the structure of the applicable law up front, usually in the form of a roadmap or thesis paragraph that lays out what the law requires or prohibits and breaks out individual elements of proof or factors and how those parts of the legal test relate to one another. The document should then mirror that legal structure initially set out for the reader. Strong topic sentences should parallel terms of art from the roadmap, and conclusions on each element or factor are helpful to signal to the reader that the discussion on that section is ended. The following is a checklist of a few Large-Scale and Small-Scale Organization items to focus on in the comments:
- Roadmaps: Has the student provided a roadmap up front to give the reader the context and the structure of the law (and thus to preview the structure of the document)? Mini-roadmaps can also be used throughout the document to set up subsections of the document where individual elements or factors have multiple, discrete sub-parts that require individual analysis. Identify any places in the document where the student discusses issues that were not previewed in the roadmap, or where elements identified in the roadmap are not analyzed in the text of the document, so that the student can reorganize the document to better guide the reader through the analysis.
Examples of Margin Comments Re Effective Roadmaps
- Topic Sentences (TS) and Reader-Based Outlines (RBO): Does the student provide strong topic sentences throughout that follow the organization laid out for the reader in the roadmaps and mini-roadmaps within the document? Here, the comments can provide a “Reader-Based Outline” for the reader, by outlining the document based on just the topic sentences. Read each topic sentence and note in the margin what the reader will think the paragraph will discuss based on the topic sentence alone. If the paragraph addresses something different or something more than the topic sentence suggests, point out how this inconsistency is likely to affect the reader’s understanding of the analysis.
- Mini-conclusions: Does the reader conclude on each element or factor so that the reader understands the outcome of the student’s analysis and reasons for the outcome on that particular issue or element?
Every analytical legal document (such as a memorandum, brief, or scholarly article) will require legal analysis. It might focus on statutory interpretation techniques, case analysis, policy arguments, regulatory analysis, or a combination of analytical techniques. Below is a checklist of overarching issues to watch for in commenting on all types of analysis.
- Grounding the analysis in the law: Has the student used the law to support the arguments? Often times, students rely on fact-based arguments without tying them to the law itself, resulting in weak legal analysis.Therefore, look for where the student provides a general rule that applies to each specific element or factor, and let the student know if that rule appears too late in the analysis to effectively guide the reader through the legal discussion of that element or factor.
Example of Margin Comments Re Grounding Analysis in the Law
- Stating express legal rules at the start of each issue and sub-issue (“fronting” the law): It is helpful to put the applicable rule of law up front to provide legal context for the reader. Often, beginning legal writers will work their way up to the applicable rule by first summarizing the various legal materials that they have found, providing the legal rule that can be inferred from the various applicable sources of law at the end of the legal analysis. Therefore, look for places where the rule is stated too late to be helpful to the reader in understanding the legal analysis and use the comments to note where a specific rule could be moved to earlier in the section. Similarly, look for places where the student never expressly states an applicable legal rule that governs the analysis of a particular element or factor, using the comments to indicate where in the discussion the legal reader would expect to see a governing legal rule. This aspect of legal writing will sometimes be best dealt with as an organizational issue (e.g., if the rule is simply stated later in the analysis than the legal reader would expect), and at other times it will be best dealt with as an analysis issue (e.g., if no express rule is stated or if the rule is too imprecise or inaccurate).
Example of Margin Comments Re Legal Rules (Organization & Preciseness)
- Applying the law to the facts: Students have a hard time effectively applying precedent to facts. For case comparisons, look to see whether the student is providing the facts, reasoning, and holding of prior cases and expressly tying them to their client’s facts. Ultimately, students should also become adept at using complex comparisons, such as providing multiple cases for comparison or creating a sliding scale argument. For statutory interpretation, look to see whether students are looking at tools of statutory interpretation such as plain language, definitions, contextual arguments, policy arguments, and prior cases to show the legislature’s intended scope of the law and to thus support the students’ arguments about how the statute is likely to or should be applied to the client’s factual situation.
- Avoiding Long Quotes as a Substitute for Analysis: Students, especially those who don’t fully understand the law, often use long quotes instead of using their own words (as they think judges can say it better than they can). Use the comments to show students where the reader’s eye is likely to skip over a long quote or where only a part of a quote is needed to convey the essential meaning from the source.
- Avoiding Misinterpretations of the law: Although legal sources are often subject to multiple inferences and interpretations, novice legal writers will sometimes misinterpret the law, either because of a lack of understanding of the general area of law or because of a failure to completely and carefully review the available legal materials pertaining to the particular legal issue. For example, students will sometimes take a quote out of context, mistake the appellate court’s summary of the lower court’s holding as the ruling on appeal, take a dissenting judge’s opinion as the opinion of the majority, or cite authority relating to a different legal issue as determinative without any explanation of how the authority relates to the issue at hand. These analytical missteps should be noted in the comments and discussed during the conference so that the student can learn to avoid similar problems in future writing — but again, be sure that the comments are addressing true misinterpretations of the law. Plausible interpretations that are not as strong as other possible interpretations of the applicable law are better addressed by raising possible counterarguments in the comments and asking the student how she would rebut the counterargument, rather than by making “corrections” to the student’s interpretation.
Students tend to be wordy, drafting legal documents that are far longer than necessary. Below is a checklist of some commenting techniques to help the students be more concise:
- Redundancy: Students often repeat words or phrases. Therefore, if you notice the same words being used in close proximity, chances are one of them can be omitted unless they are legal terms of art that are a necessary part of the analysis and discussion.
- Relevancy: Students often include irrelevant information in their legal analysis. For example, they might provide too much information about a prior case instead of focusing on the facts and reasoning that apply to the specific point being made. By noting irrelevant pieces of the writing, the comments can help the students streamline the analysis and to develop their judgment about what information the legal reader needs to understand the law and its application to the case at hand.
- Word choice: A number of word choice tricks are available to help students be more concise. Strong subject-verb combinations can replace introductory phrases such as “there are/it is.” Avoiding long phrases when one word will suffice (“in the event that” can become “if”) will allow students to convey information more concisely. The professor’s comments can also show students where they can avoid “teeing up” language, such as “The court has stated that the rule is” or “In X case, the Ninth Circuit interpreted this element to require” – instead, use the comments to prompt students to just state the rule directly and let the citation speak for itself.
Each document will have a specific purpose. For example, the purpose of a memo is generally to provide an objective analysis of a legal issue and its application to the client’s situation; it is typically both informative and predictive in nature. The purpose of a brief is to persuade the audience (the court) to rule in favor of the client. The purpose of a scholarly paper is generally to express the original ideas of the scholar about an area of law; it should provide a clear thesis and novel thought. The comments should point out any areas where the document strays from its particular purpose (such as being too argumentative or not being predictive in an objective memo) or fails to meet the purpose (such as being too objective in tone in a persuasive brief or not providing a novel theory of the law in a scholarly paper).
Example of Margin Comments Re Purpose of Document
The audience for practitioners’ documents is typically a legal reader; however, within each document, the legal reader may vary (e.g., a supervising attorney for a memo or a judge or clerk and opposing counsel for a brief). For practitioner’s documents, the writing should be formal, use citations appropriately within the text, and assume the reader knows how the law works in general. Scholarly documents are written for a different audience; while they are still written for legal readers (and citations are typically included in end notes or footnotes), they are more personal in nature (referring to “I” or “we”) and can sound a bit more conversational than practitioners’ documents. In commenting on a student’s document, the professor can help students to better understand the particular audience for the document by framing comments in terms of what the legal reader will expect and how s/he will likely react to specific parts of the document. For example, if the anticipated audience for a memo is a supervising attorney, the student will not need to explain that a disputed fact will be decided by the jury; similarly, if the anticipated audience for a brief is a federal district court judge, the student will not need to explain what cases are binding on that court and what cases are merely persuasive.
Example of Margin Comments Re Audience
b. Specific Goals for Each Document
In addition to the general writing goals listed above, the professor may have specific goals for a particular assignment. For example, a writing assignment might be intended to teach students about statutory interpretation techniques, inductive reasoning, or crafting policy arguments. Therefore, the comments might also address the student’s success in meeting these goals. If an assignment is intended to teach the students about a specific area of the law, the comments might also address how well the document demonstrates the student’s understanding of the legal doctrine within that particular area and the nuances of the law. The comments might also address ethical behavior in terms of using the law (such as not misrepresenting the law or the facts).
Before each assignment, it is helpful for the professor to explain both his or her general and specific goals to the students. The more the students understand the pedagogy, the better able they will be to meet the goals of each document and, ultimately, the course. Expressly identifying the goals of each assignment to the students before they hand it in will also help the professor in focusing her comments, so as not to overwhelm the students with too much information. In addition to focusing comments on the particular goals of the assignment, the professor should also keep in mind the differing purposes of comments on draft documents and comments on final documents.
2. Draft versus Final Documents
The goals of the professor’s comments on draft papers differ from those on final documents. For the draft documents, the students will be rewriting the paper after reading and discussing the comments, so the focus of the comments will be on techniques for this specific paper’s improvement, which hopefully will translate to future documents as well. In draft papers, it is important to write both margin comments and end comments (see below for more discussion of the distinction between margin comments and end comments) and refer back and forth from one to the other so that students can see both specific responses to text and overarching points that should be priorities for the students when rewritiing. On the other hand, a final document will not be rewritten, so the focus is entirely on transferring the techniques learned (and not learned) from the final document to future writing. As a result, other than margin comments relating to polishing errors in the final draft, end comments are usually enough to accomplish the main goal of commenting on a final document.
The margin comments on a draft document provide chronological feedback within the document and specific responses to text; here, touch on the students’ writing, focusing the comments mostly on your main goals for the particular assignment and providing a grammatical or citation comment only occasionally, if there are repeated errors of the same type. If the comments on a particular page of the document focus only on bluebooking, those comments are not helping the student in achieving the main writing goals for the assignment (unless, of course, the main goals relate primarily to use of citations). Be sure not to fill up the student’s paper with margin comments; leave some white space between margin comments to avoid overwhelming her, and focus just on the most important rewriting points for the student to work on for the next draft.
The end comments in both the draft and final typically are appended at the back of the student’s paper, framed as a note to the student about the paper as a whole, and should focus on your main pedagogical goals, starting with the most important goals that the student should focus on either in rewriting the document (for a draft) or in working on future documents (for a final document). Triage is important so that the students understand their first priorities. So, if the end note starts with organization, it is because that student needs to work first on the organization of that document. If there are several aspects of a particular topic that the student needs to work on, the end note could be organized with headings and subheadings. For example, the section in the end note dealing with organization might be broken up into a paragraph about the roadmap, one about the reader-based outline and topic sentences, and one about the organization within each element. To discuss analysis, the end note might focus on case comparisons and providing a rule up front for context. As the end comments proceed through the main goals of each paper, be sure to save comments on polishing, if the students are even ready for them, until the end of the end note. Otherwise, they will think that citation format or grammar is the most important facet of their writing and will direct their rewriting efforts to simple polishing edits, avoiding the more difficult — and more important — work in improving their ability to organize, analyze, and concisely write a legal document.
The end comments in a draft should help focus the writer on rewriting the document. They should provide both general feedback and specific comments (with references to pages or sections of the document) so that the student can easily pinpoint issues and rewrite them based on the feedback. For final drafts, these end comments will not be written in terms of rewriting this specific document. Instead, they will focus on future writing and how to improve on the next legal document, using specific examples from this document as illustrations of effective or ineffective techniques. The goal is for the student to be able to self-diagnose her writing issues in her own writing by absorbing the feedback on the particular document and applying it generally to future documents.
The comments should also serve as models for the students of strong writing, using well-organized feedback with clear headings, topic sentences, and accurate grammar and sentence structure. For example, an end comment section on large-scale organization should be organized with clear topic sentences and easy to follow paragraphs, using headings and sub-headings where appropriate to guide the reader. Similarly, to model conciseness, the comments should avoid excess words, and to model effective polishing, the comments should be error-free. If the feedback is not perfectly polished, students will be less concerned about keeping their own writing free of polishing errors.
Two aspects of process warrant careful consideration before any assignment is given: a) the students’ writing process and b) the professor’s commenting process.
a. Students’ Writing Process
The students should be able to rewrite focusing on each pedagogical goal separately, as opposed to editing the document chronologically, from the first page to the last. The process can be broken up into rewriting, revising, and polishing.
- Rewriting focuses on the main pedagogical goals, reflected in the order in which these issues are addressed in the particular student’s end comments, and the student should focus on each goal separately. Much of the focus of rewriting is done by the student with his or her “lawyer’s hat” on, because this stage of the process usually focuses on the structure of the law and the legal analysis. Often, the rewriting phase of the process will be a recursive process, requiring several “trips” through the document. For example, when rewriting, a student should focus on large-scale organization separately from focusing on analysis, and then should spend another draft just working on conciseness. The rewriting process is probably the most time consuming, as the student will need to address all the pedagogical goals mentioned in the comments.
- Revising, on the other hand, is the process of editing, where the student focuses more on the sentence structure and grammar issues within the document. Revising should only be done after rewriting, as it would be a waste of time to rewrite sentences that will be omitted altogether. It is only after the student is sure that the analysis of the law is complete and correct and organized in a way that will satisfy the legal reader that she should put on her “writer’s hat” and begin the revision process.
- Polishing is the process of making sure there are no typos or citation issues within the document. Unfortunately, many students feel as if they need to start with the polishing issues (often, because there are absolute answers to grammar and citation problems) instead of focusing on the more important pedagogical issues first. The professor should remind students that polishing should be the final stage of the writing process, and thus that enough time must be set aside from when the comments on the draft are received to when the final document is due to be able to incorporate all stages of the writing process. It is always a good practice for the students to set personal deadlines for themselves for completing each stage of the process, allowing the most time for rewriting and leaving the last day or evening before the paper is due for polishing.
b. Professors’ Commenting Process
Commenting effectively and efficiently is an art that will take some time to master; however, the more commenting you do, the better you will become both in terms of substance and efficiency (and the easier it will be to revise your own writing to make it more effective). A variety of approaches are available for each batch of documents. Some professors find it helpful to first skim through all of the student’s papers to get a sense of the variety of ways to attack the legal issue. Others prefer to dive into the first one and address each one individually. Often, new commenters take the first approach, whereas more experienced commenters are willing to tackle the first student’s paper without a prior look through the group of papers as a whole.
When addressing each document at a time, there are a variety of approaches. Consider looking at each paper quickly at first – perhaps reading only the headings and topic sentences as a busy legal reader might do – looking at the overall organization and breakdown of the law; here you might only create a reader-based outline and touch no other part of the text. Next, consider reading the whole paper thoroughly and writing the margin comments – using the Word commenting feature – while keeping notes on a piece of paper or a separate screen regarding patterns of problems that appear throughout the paper. These notes can provide an ultimate outline for the end comments. By referencing page numbers in these notes, the professor can easily refer to specifics within the end comments. Another option is to move back and forth between margin comments and end comments: once the professor identifies a strength or weakness in one of the main pedagogical focal points for the assignment, she can move to the end note and address that issue with a reference back to the page(s) where the problem was first noted, and then resume the margin notes where she left off. Page references to other places where the same strength/weakness appears can then be added to the end note as the professor proceeds through the margin notes and sees similar issues. Similarly, as the professor is writing the margin notes, if a margin note starts becoming too long, the substance of the comment can be moved to the end note under an appropriate heading with just a cross-reference to the end comment in the margin (e.g., “This case analogy would be stronger if it were more direct and express. See end note under Analysis for more”). Some professors like to use a split screen for this process; others use sticky notes on their computers; and others toggle back and forth between their notes and the document.
To encourage students to focus on the more important issues first, focus the comments on the main goals for the assignment and spend more “air time” on them throughout the document. Labeling the comments (e.g., Analysis, Rule Synthesis, or Large-Scale Organization), both in the margins and end note, can often help the students focus on the pedagogical goals of the assignment and comments. If the end comment starts to become too long — and each professor will have his or her own view of what length is appropriate for an end comment given the nature and scope of the assignment — the professor can narrow it down to just the most important issues for the student to focus on during the rewriting process or on future documents, saving other issues for discussion during the conference or for later in the student’s learning process. As a result, not all students will have the same pedagogical goals covered in their end notes; students who still need substantial work on research and organization for a particular document might not receive a great deal of feedback on legal analysis, whereas students who submit well-researched and well-organized drafts might receive much more detailed feedback on their use of authority and analogical reasoning in that assignment. The goal is for the comments to assist the particular student in developing her skills, and thus the comments should always be tailored to the particular student’s needs in light of the goals of the particular assignment. Do not provide generic feedback; always tie comments to specific examples in the student’s own writing.
Avoid the temptation to fill the page with grammar and bluebooking edits, particularly when commenting on draft documents. Most students will still have significant substantive rewriting to do after receiving comments on a draft, and giving line-edit or polishing comments on text that needs substantial substantive revision will be a waste of time and energy on the part of both the professor and the student. If there are repeated errors of an editing or polishing nature (e.g., a tendency to write run-on sentences or consistent failure to include pinpoint citations), include a short paragraph at the end of the end comments that addresses these issues and instructs the student to watch for those sorts of errors when revising and polishing the next draft.
Time management during the commenting process is often a challenge, even for experienced commenters. The first few papers are usually the most time-consuming; once the professor has crafted a written response to a particular issue, that text can be used as a starting template when the same issue appears in other students’ papers as long as it is edited to apply to the individual student’s work. Some professors find it helpful to set a timer while working on an individual paper, with the alarm as a signal for him or her to wrap up the comments on that paper within the next thirty minutes. Others prefer to set aside a paper that is taking longer than expected and go back to it later with fresh eyes; sometimes, after commenting on another paper or two, it is easier to focus on the more troublesome paper. Another option for a section of a paper that is extremely challenging to comment upon is to simply insert a margin note that says, “Let’s discuss this section during our conference,” as sometimes it is more efficient to simply talk to the student about what she was trying to accomplish in a particular section than for the professor to try to discern that intent from a poorly drafted section and respond to it in the feedback. Once the professor is familiar with the students, he or she will know what aspects of their writing particular students are working on and can focus mainly on those areas, making the process more efficient. As the course progresses, the professor will also have a sense of which papers are likely to be more challenging to comment upon and can tackle those papers on days when more time is available or when the professor is freshest.
It is important to set aside enough time for each set of comments as the process will invariably take longer than expected. For the fall memos, the process will take a significant amount of time, even if the papers are relatively short, because the professor needs to become familiar with the students and new commenters need to develop an efficient process. In the spring, the professor will be more familiar with the students and new comments will have become much more experienced, but the documents tend to be longer and more complex.
C. Specific Commenting Techniques
A number of specific techniques, both in the margin and end comments, are available for professors to encourage the students to think for themselves, to avoid appropriating the text, and to ensure that the students are stepping into the reader’s shoes. In the context of providing written feedback to papers in undergraduate composition courses, Brooke Horvath has discussed seven different types of formative responses to student writing, which treat the professor’s comments as a part of the student’s “ongoing process of skills acquisition and improvement” rather than as an evaluation of the student’s written product: correcting, emoting, describing, suggesting, questioning, reminding, and assigning.
All of these types of formative responses can be effective in commenting upon legal writing, but most of the comments on papers in a legal writing course will fall into the last five categories. Describing can be effective in helping students to see how well their organizational structure is working and how effective their analysis is in conveying legal issues to the reader; the Reader-Based Outline is an example of a descriptive comment. Suggesting can be effective in pointing out possible counterarguments or additional authorities that the student might consider incorporating into the analysis, as well as in providing multiple possible options for rewriting a given section of text. Questioning can be effective in helping students to identify gaps in their analysis or places where the reader is likely to be confused. Reminding the students of issues discussed in class, points covered in the reading materials, and comments made on past papers can help to tie the comments on a specific paper to the course as a whole and can save the professor from having to repeat information in the comments that the student can find elsewhere in the course materials. Finally, assigning the student specific tasks to do before the conference can help to streamline the revision process; for example, the student might be asked to conduct additional research and bring it to the conference or to rewrite a paragraph or rule statement before the conference. Using a variety of these types of formative responses throughout the comments will help to ensure that the feedback is effective for both the variety of issues addressed by the comments and the differing learning styles of the students.
The following are some specific commenting techniques for the professor to keep in mind throughout the commenting process.
1. Do Not Provide Answers; Instead, Ask Questions
When dealing with an issue relating to organization or analysis within the paper, instead of providing answers or suggesting solutions, ask questions. Doing so helps the student to take ownership of her revisions and avoids creating an impression that there is one “right” way to write the document. It is often helpful to frame these questions in terms of the reader’s response, to help the student understand why the current text would be likely to leave the reader confused. Questions can be followed with suggestions for how the student might go about addressing the reader’s concerns or reminders as to where in the course reading materials the student might look to find more information about how to address the problem identified in the text. Of course, if the issue is one relating to citation format or polishing, where there is in fact only one correct answer or solution to the problem, then it may be appropriate to correct the problem or point the student to the citation rule or grammatical rule that provides the solution — but “correction” comments should be rare in draft documents.
Have you found any support for these arguments in the law? While these facts are persuasive, this paragraph would be more effective if you made it more explicit why the legal reader should care about these facts and how the law has been applied in the past to similar factual situations.
What legal rule are you using this case to explain? For more information on synthesizing legal rules from the authorities that you’ve found, see [page or chapter in writing text, or link to online materials].
2. Explain Why
Instead of simply telling the student that something is not effective or needs to be reworked, explain why, using descriptive language that refers to the student’s text. On the flip side, if something is effective, explain why so the student can consciously repeat the writing technique at the appropriate time. Although the professor should strive to include positive feedback, margin comments such as “Strong rule statement” or “Effective analysis” are not helpful to the student in revising the text; follow up any such comments with a “because” phrase.
This mini-roadmap is effective because it clearly and persuasively sets forth your organization for the next section, listing the sub-issues in the order in which you address them below and explaining how they relate to one another (i.e., satisfying any one sub-rule will be sufficient to meet the element).
3. Believe and Build on the Students’ Writing
Try to believe in the students’ writing; play the “Believing Game.” Start with the premise that the student is trying to do something worthwhile and then figure out where the writing breaks down. That way, the student can keep her voice and make her arguments, but she can learn how to ground them in the law and organize them in a clear and concise fashion so that the reader cannot misunderstand her meaning.
Based on the description, it appears that the argument here is that the plaintiff’s symptoms are not severe because she could function in daily life. Is there any way you can synthesize a rule like this from the case law, to give the reader some legal context for that argument?
4. Do Not Make it Personal; it is about the Document
Students take writing very personally. If the comments are focused on the document and the legal reader’s response to that document instead of focused on the student, students will be more likely to view the comments objectively and will be less defensive. So, avoid the use of “you”; instead, focus on “the document” or ”this topic sentence” or “this section.” Similarly, try to take yourself out of the comments; instead become the legal reader. So, avoid using “I think” or similar self-references; instead focus on “the legal reader” (e.g., “the legal reader might be confused here because. . .”). That way, the comments will illustrate how the intended audience is likely to respond to the text so that the student can better understand the expectations of the audience in the legal discourse community and will be less likely to view the comments as just a matter of differing style preferences.
The reader is unable to see the comparison to Simon because the analysis in this paragraph does not provide any facts, reasoning, or holding for that case.
The roadmap was effective because it broke down the legal elements for the legal reader. However, it included extra language that was not needed. Several of the elements listed in the roadmap included the court’s interpretation of what those elements required. This information would be more helpful to the legal reader in the section of the memo where you analyze and apply the specific element rather than in the introductory roadmap.
5. Positive vs. Negative Feedback
While some professors believe that comments must begin with praise for the students’ writing, this flattery can appear disingenuous, especially when students compare feedback. If every paper begins with “good effort” or “congratulations on your hard work finishing this memo,” it dilutes the feedback for those students who actually did work hard (and at times it may be difficult to determine which students worked hard compared to those who did not). Most students do not need the false praise and prefer to get right to the substantive feedback to help them improve. However, comments that only criticize can be demoralizing to students; strive to maintain a forward-looking and positive tone even when providing negative feedback. Look for aspects of the paper where there is improvement from past papers or at least a start at incorporating concepts discussed in class that the student can build upon, and identify the next steps the student will need to take to improve upon that start. Positive feedback, when used appropriately, can help students improve. By pointing out the parts of the writing that are working and why, the comments can help students to become conscious of what is working well in their paper and the students can then try to either expand upon it or repeat it later in their writing. Particularly in the later stages of the course, look for parts of the student’s text that you can suggest she use as models for future writing, such as a strong roadmap, an effective topic sentence, a synthesized rule statement, or an express analogy.
This case comparison effectively draws a link between the facts of Johnson, Dorsey, and Judd. Now, consider whether there are any other parallels you can draw between the reasoning given in these cases and the facts of our case.
It is a good instinct to put a rule like this up front, and it is persuasively written. However, what about the case law that says that this is not enough to make a procedure unnecessarily suggestive? Consider revising the rule to incorporate negative case law as an exception, acknowledging the other side and then distinguishing our facts from that negative case law.
6. Provide Several Examples – Never Just One Right Approach
In order to force the students to think, do not provide one example (such as a topic sentence or mini-conclusion) for the student. Instead, provide several examples or several different starting points for a revision. That way, the student will be forced to consider several possibilities to decide which works best for her document. Often, the student will then combine different parts of the examples to craft her own topic sentence or mini-conclusion that best fits her own intended meaning and writing style.
Your use of the term “threatening” in the discussion of outrageous conduct on page 5 is confusing. The conclusion to the first paragraph states that Gordon’s conduct was NOT threatening; therefore, it was not outrageous. The legal reader will naturally assume the converse is also true, e.g., that if his conduct WERE explicitly threatening, it would be outrageous. But in the next paragraph, the topic sentence seems to assume that even if his conduct were threatening, it would not be outrageous. To rework, consider revising the rule statement to more precisely explain when threatening conduct is or is not outrageous, or consider changing the conclusion to fit the case cited, or you could deal with the “threatening” aspect as a potential counterargument to your position. We can discuss these possibilities and any others you might think of when we meet in conference.
7. Use Terms of Art Consistent with Vocabulary Used in Class
The comments should use the same terms of art used in class, and, where possible, in the readings. For example, if these terms are used in discussing legal writing in class or if the class textbook incorporates them, the comments will also refer to “reader-based outline” (RBO), topic sentences (TS), large-scale organization (LSO), and other terms used throughout the year. Reference pages (or link to them in an ebook) in the readings for the students when necessary.
This is a strong TS for the section because it clearly identifies both the element you are analyzing and the conclusion that you reach as to that element. Compare this to the TS at the start of the next section, which mentions elements that are outside the scope of the analysis in that section of the memo.
8. Triage – Don’t Overwhelm, Especially with Minutia
While commenting, focus on the more important items instead of on minutia. While it might be difficult to let a grammar problem go, the primary goal of the comments should be to assist the student in accomplishing the bigger goals for individual assignment and for the course as a whole. Otherwise, not only will the student get the wrong message (for example, that grammar or citation is most important), but the professor will waste valuable time and will not be able to spend enough time on the important items. Therefore, give appropriate “air time” to the biggest goals of the assignment in the comments. For the end comments on a draft document, start with the items that the student should begin with in her rewriting process. It just doesn’t make sense to fix the grammar in a sentence when the whole paragraph will eventually be omitted or substantially changed. For the end comments on a final document, begin with the items that the student should focus on in future writing assignments. Only get to revising and polishing issues if there are not too many rewriting issues for the student to focus on (see B(3)(a)above for more on the different stages of the writing process).
Take a look at the student’s paper when the commenting is complete. Are the margins too crowded with comments, leaving little or no white space between them or forcing comments to continue at the end of the document? If so, the comments will likely overwhelm the student so that there is a good chance the student might not even read through or consider the comments at all. In addition, take a glance at the kind of comments provided. If they are mostly focused on grammar or citation, the student will get the message that the primary focus in revising should be polishing and will simply go through his paper and edit. Instead, focusing the majority of the comments on the primary goals of the assignment will ensure that the student focuses most of his time thinking through the major issues addressed by the assignment, such as research, organization, rule synthesis, and legal analysis.
- This text is intended for all teachers of legal writing, whether they be full-time faculty, adjuncts, fellows, or upper-class law students. For ease of reference, we will use "professors" throughout most of the text, but we mean it to be inclusive of all who teach this subject, regardless of title. ↵
- Of course, teaching junior attorneys to produce effective legal documents on their own in the future should, and often is, a goal of a supervisory attorney in practice. However, because of the demands of a busy practice, training associates to create effective legal documents is often a secondary goal that is not the focus of the supervisory attorney's efforts in reviewing documents submitted by junior attorneys. ↵
- Nancy Sommers, Responding to Students’ Writing, College Composition and Communication, Vol. 33, No. 2, page 149 (1982), available at http://www.jstor.org/stable/357622. ↵
- Peter Elbow, The Doubting Game and the Believing Game, Pre/Text: An Inter-Disciplinary Journal of Rhetoric 3.4 (Winter 1982); Peter Elbow, The Believing Game--Methodological Believing, The SelectedWorks of Peter Elbow (2008), available at http://works.bepress.com/peter_elbow/20. ↵
- Brooke K. Horvath, The Components of Written Response: A Practical Synthesis of Current Views, Rhetoric Review, Vol. 2, No. 2 (January 1984), available at http://www.jstor.org/stable/465572. ↵
- Elbow, supra n. 4. ↵