2 Conferencing

Legal writing teachers have one-on-one conferences with their students at a variety of points in the writing process.  As with comments on a piece of writing, the nature of a writing conference will depend upon the stage of the writing process at the time of the conference and the specific goals of the professor in holding a conference at that stage.  A pre-writing conference might focus on legal research, fact-gathering, and/or large scale organization; a conference after submission of a draft paper might focus on rule synthesis, analogical reasoning, addressing counter-arguments, and/or small scale organization; a conference after submission of a final paper might focus on tone, citation format, and/or priorities for future writing based upon the progress made in rewriting the paper. This section will address the various goals of the different writing conferences held during the course, some common behaviors or responses of students in their first legal writing conferences after having received comments on a draft,  a general roadmap for a successful conference, and specific strategies for various types of conferences throughout the semester.

Some of the goals and techniques discussed in this section echo those discussed in the Commenting section.  In spite of these similarities, the techniques discussed herein can be more challenging to implement in the multidimensional context of a one-on-one discussion than in the more controlled context of written feedback.  They can also be more effective, because the teacher is able to observe the student’s responses, evaluate his or her understanding of particular concepts, and find alternative ways to explain and illustrate the concepts if the student has misunderstood the written comments.

A. Goals of the Writing Conference

The ultimate goal of the writing conference from the teacher’s point of view is to engage the students in a self-critique of their writing and help the students to become their own editors.   The students, on the other hand, will often be much more product-driven, as they will want the best grade on the paper.  However, these goals are not mutually exclusive.  The document itself is the vehicle for the dialogue about writing techniques and process. If the professor can help the student to make the document the best written product that the student is capable of producing and to understand why it is effective, then the student will be able to translate that critical thinking and writing process to the next document. The specific goals of each conference will differ, depending on the writing assignment, the timing of the conference during the writing process and during the semester, and the students’ needs and learning styles.  Think about the following:

1. The Writing Assignment

As discussed above with respect to the goals of the comments on a paper, in designing the course, the teacher will have specific, concrete goals for each assignment.  Just as the primary focus of the comments on an outline, draft, or final paper will be dependent upon the pedagogical goals of the specific assignment, the focus of a writing conference at any stage in the process will first be on the steps that the student will need to take to achieve those goals.  An effective conference will address not only what the student has accomplished thus far in the process of completing the assignment and meeting its goals, but will also address what the student should focus on as she moves forward, either with the particular writing assignment or the next one, given the goals of each assignment and the student’s progress to date.

2.  Stage of the Writing Process

A conference that discusses rewriting will differ substantially from one that discusses an outline or the prewriting process.  In a conference about an outline, the student should be asking substantive questions to fill in holes in the analysis and inconsistencies or problems in the outline’s organization. The professor can guide the student through a series of questions to ensure that the outline becomes comprehensive and clear.  A rewriting conference will focus on the specifics of the document with an eye towards improving multiple facets of the written product and process, tied primarily to the specific goals of that assignment.  Time should be spent immersed in the details of arguments and the authorities that support them, as well as guidance on improving specific sections, paragraphs, and sentences.  A conference on a final paper should be focused on diagnosing strengths and weaknesses so that the student can transfer the effective techniques used in one product into another product (and avoid the ineffective techniques).

As a general matter, conferences regarding a work-in-progress, which typically occur after a student has submitted a draft paper or outline and received comments on it from the teacher, should serve as a complement to the comments, building upon and enhancing the effectiveness of the written feedback through the student-teacher interaction that takes place in an ideal conference.  Many students think that the goal of the writing conference is for the teacher to explain the comments on a draft or outline.  However, the comments should stand on their own and the conference should be a chance for the student to ask questions about the paper and try to incorporate some of the suggestions from the comments into the writing or rewriting process.  Thus, during the conference, the student should be able to focus on her main concerns and questions and walk away with a clear understanding of the next steps in the writing process.

3. The Time of Year

Similar to the stage in the writing process, the time of the year will play a part in the focus of the writing conference.  For example, early in the year, the teacher might focus on large-scale organization whereas later in the year, more complex concepts such as weaving policy arguments into complex case analysis might be more important.  Knowing your goals throughout the year and communicating those to your students – both in class and in conference – will be helpful in focusing the students.  From the student’s perspective, the later in the semester or year that the conference occurs, the more he or she may be concerned with the grade on the product rather than on the progress that she is making in accomplishing the goals of the course.  The teacher should be aware of the students’ concern regarding their ultimate grade in the course and work to keep the discussion focused on the particular goals of the assignment and the priorities for that student to focus on in revising the document in question or in working on the next assignment.

4. Students’ Needs and Learning Styles

Students will be at different points in the learning process. Therefore, tailor the conference not only to the time of the semester and the goals of the assignment, but also specifically to that student.  For example, while one student might be very comfortable with using case law, others might need to spend much of the conference discussing case comparisons.  The teacher should be careful to listen closely to their needs during the conferences; do not assume that they are all ready to talk about case comparisons when some students might not even fully understand the substance of the law yet.

The teacher should also try to be flexible and adapt to the students’ learning styles.  Some students will be more dependent and others will have very few questions, and these preferred learning styles will affect the nature of the conference.  The teacher will need to use different strategies with the varying types of students; Chapter 3 discusses learning styles in more detail and provides tips on a variety of strategies to use for different learning styles.

B. Audience Responses

A first-year law student is a novice legal writer, regardless of his or her background and experience. In fact, some of the best English and Journalism majors are often the most frustrated legal writers in the beginning of their law school writing courses because they have to approach writing in a different way from their former genres.  Most novice legal writers are not prepared for the vast amounts of feedback and criticism on their writing that are typical in the first year legal writing course, and they come to conferences overwhelmed by the comments and in search of positive reinforcement or an easy guide to “fix” their problems. Upper class students in advanced writing courses will also be novices to some extent; even if they did well in their first-year course, which focused on practitioner’s documents, they may be new at scholarly legal writing in an upper-class seminar or may have difficulty translating the concepts they mastered in writing memos and briefs to other documents required in their clinics, transactional drafting, or trial practice courses.  The same goes for many junior attorneys, who struggle to move beyond the fundamentals learned in their law school writing courses and begin to expand the purpose and audience for their written products.  Some law students and junior attorneys become very defensive about their writing, or they are insecure about their writing but mask that insecurity with defensiveness.  The conference, therefore, can become a debate instead of a conversation.  The teacher can ensure that the conference is productive by recognizing the different types of student responses to criticism and addressing their needs while still meeting the goals of the conference.

In his or her own first year legal writing course, the writing teacher had usually been the type of student who tried hard, listened intently, and tried to find his own voice and effective writing process.  And of course, the teacher was ultimately successful in doing so. Therefore, the conferences the writing teacher experienced as a student were probably very productive and effective.  He probably asked lots of relevant questions, took notes, and rewrote parts of the document before or during the conference time. However, not all students will be the same type of student or have the same success.  Therefore, the teacher should be ready for conferences that will be different from his own experiences.  While each conference will be different, the sections below address some typical experiences and challenges confronted by professors during the conference process.

1. The Grade-Focused Student

The student who wants to know how to get a good grade – instead of how to write an effective legal document – can present challenges.  Some students are focused on the grade because they worry more about GPA than the ability to perform up to expectations when out in the field of legal practice during the summers.  Other students’ concern about grades is a response to the feedback that they have received; their response to criticism is fear of receiving a bad grade, which overwhelms any desire to learn how to produce effective documents in the future.  While the grade-focused student may be very engaged during the conference, she might be too intent on figuring out what the teacher wants instead of what she needs to learn to become a successful legal writer.  For these students, the professor should turn the focus from product (producing an A paper on this project) to process (learning how to both improve the particular document and to become an effective writer on any project).  The following are some examples of how the professor might shift the focus:

Student: How do I get an “A” on the exam [or this paper]?^[1]

Teacher: Well, the “A” papers will be the ones that most effectively apply the legal writing principles that we have been talking about in class.  Let’s look at this paper and what your priorities should be in rewriting it to best incorporate those principles, so that we can be sure you understand what is working and what is not working and why.  I also want you to be able to transfer these skills to other documents at your job this summer and when you are a practicing lawyer.

Student: What do you want me to do to get a better grade on the next assignment?

Teacher:  I know you are concerned about your grade, but I am most concerned with what you need to do to make the next assignment stronger. Grades are relative to other students, and we should be focusing on what priorities you should have in building from this assignment to the next. By the end of this year, our goal is for your written work to impress your summer employers. [Then, turn attention to the priorities for the rewrite or the next assignment.]

2. The Insecure Student

Many students in law school are insecure about their writing, or they were very confident in it until they attempted to write their first document for their legal research and writing class.  For these students, try to boost their confidence by letting them know that insecurity is a normal feeling for all of law school – especially in legal writing. Assure them that the more practice they get, the better they will be and that the ultimate goal is to be ready for their first legal job – not their first legal memo in school.

These students might appear to be very needy and ask the professor to “fix” their documents (“Just show my what I need to do and I’ll do it.”)  However, resist the urge to rewrite for them. Instead, give them the confidence to do it themselves.  Have them try to rewrite small parts of the document in the conference and lead them to success by prodding them with questions as they write (“Will the legal reader understand what that means?  Who is your audience?”)  Show them parts of the paper where they have a start at effective organization or rule synthesis or analysis, and talk with them about how they might build upon that starting point to make that part of the paper even more effective.  For example:

Student: How do I fix this topic sentence that you said was not effective?

Teacher: Does the topic sentence address the legal issue so that the reader knows what element will be discussed in this paragraph?  Talk me through what this paragraph/section is intended to address, and then you can rewrite it right here using the legal term of art for the reader.  Afterwards, we can do a reader-based outline together to see if it is working better.

Student: What cases should I be using to address possible counterarguments?

Teacher:  Let’s talk about what cases you’ve found so far that address this legal issue. Are there any that you think your opponent would rely upon heavily? If so, let’s brainstorm ways that you might distinguish those cases. Are there factual differences that are potentially important, or does the legal rule adopted by those cases have potential exceptions that could apply to the client’s case?

3. The Unprepared Student

Some students will come to conference who have not read through the comments. Here, the professor has several choices.  One option is to reschedule the conference.  This is not a bad idea if the student has a good reason for being unprepared and there is time in the schedule for another appointment.

Another option is to try to focus the student on a few major points in his or her writing that need to be discussed, illustrating the point by directing the student to specific parts of the paper.  The professor might also ask the student to discuss her writing process and the parts of that process that were most difficult for the student, or ask the student which sections of the paper she felt were the strongest or weakest.  By having the student discuss his or her process or self-evaluation, the teacher will find opportunities to point the student to specific comments in the end note and examples in the text of the paper that are related to the discussion.  In these instances, the professor will start out driving the conference, but the goal is for the student to take over and start asking relevant questions, brainstorming ways to strengthen aspects of the draft, and rewriting parts of the document during the course of the conference.

Video

The Unprepared Student                                                                         

4. The Challenging Student

From time to time, the writing teacher will face students who question the teacher’s authority or who defend their writing as just “a difference in style.”  These situations can be difficult, as the professor needs to recognize that the student is most likely insecure about his or her writing even though he or she appears to be very confident and defensive.

Here, avoid using the term “you” or “I” during the discussion and instead focus the student on the document itself.  Refer to the legal professional – what would a supervising attorney expect in this situation?  How would a judge interpret this paragraph or section?

In addition, try to play the “Believing Game”^[2] by having the student explain what he or she intended by the part of the paper at issue.  How can the student rework a problematic section to better meet the reader’s expectations while still accomplishing the student’s goals?

Student: There is nothing wrong with my writing.  You just didn’t like my style.

Teacher: Let’s look at a specific paragraph.  Would the judge expect to see just factual argument here or would she expect the arguments to be grounded in law?  This argument has potential, but let’s brainstorm ways that you could find authority to lend support to it so that your reader will find it more persuasive.

C. Techniques For a Successful Conference

This section outlines some general techniques that will help facilitate a successful writing conference.

1. Preparation

Be prepared – if possible, look over the student’s paper ahead of time and jot down notes so that you can focus on your main pedagogical goals.  However, don’t be so stringent in your goals for the conference that you are unable to actively listen to the student and to consider which path of rewriting will be most helpful to the student’s learning styles.

Likewise, the student should also be prepared and should know that the teacher expects her to be prepared.  She should have received your written feedback at least 24 hours before the conference so that she has time to digest the comments and prepare questions or try to rewrite some portions or sentences.  If the student has not read through the comments, the conference can be a waste of both the student’s and the teacher’s time.  For comments that include a specific rewriting assignment for the conference, the time between return of comments and the conference might be even longer to allow the student sufficient time to complete the assignment.  Even if there was no specific rewriting assignment for the conference, the student should be prepared to start rewriting during the conference itself and should have some ideas as to what process will work best for her.

Videos

Preparing for Conferences

Conferencing Techniques

2. Timing of Conferences

Avoid setting up all of the conferences back to back.  Instead, spread them out over several days if possible, with blocks of no more than 3 or 4 conferences in a row and with time built in between conferences.  Doing so allows the teacher to take a break between meetings with students, to have sufficient time to look at each student’s document in between each conference (or set of conferences), and to avoid “rubber stamp” conferences in which the teacher merely repeats the same information multiple times instead of focusing on each student’s individual concerns.

In addition, ideally the timing of the conferences will both give the teacher sufficient time to review and provide written feedback on the assignment and the student sufficient time to incorporate changes discussed during the conference before the next assignment is due. In addition, ideally the student would be provided with sufficient time between receipt of written feedback on the assignment and the conference itself to review the feedback and complete any assignments incorporated within the feedback. For example, if the student’s research is weak and you have asked them to do additional research and bring any new cases with them to the conference, you would want to make sure that there is sufficient time from receipt of the feedback for the student to complete that work before the conference.

3. Student as Driver

The student should be driving the conference.  He should have thoroughly read through your comments and come prepared with specific questions.  He is the one who is ultimately responsible for the finished product and he should own the process as well as the product.  Therefore, make sure he has had plenty of time to read over and digest your comments before the conference.  In the conference, let the student ask the questions.  Have him take notes and write (or type) directly on his document.  Try to resist the urge to write on his paper or take over his laptop.  He should be the one with the pen in his hand or his fingers on the keyboard – not you.  Explain these expectations to your students before the conferencing process begins so that they know how to prepare and what their role will be in the conference.

Video

Video: Student as Driver                                                                            

4. Collaboration

While the student is the driver, the environment of the conference should be collaborative and the students should feel as if the teacher is helping them navigate their way to a better document and process.  Therefore, sit next to the students (as opposed to across the desk).  Answer their questions using a positive tone and guide them in the right direction, but do not dictate text or lecture about substance or style.  Engage the students in casual conversation, if possible, before jumping right into a formal discussion about the document.  Prompt them with questions so that they can explain the purpose of a paragraph or sentence.  Talk less; find ways to have the students talk more.  Frame your discussion as a legal reader who needs to use the document rather than as a teacher/evaluator.  Look for progress that you can praise and encourage the students to expressly state their primary goals in rewriting the document.

5. Triage

As the students drive the conference, be sure they addresses the most important issues first. If they start with questions that are not as important as they should be (such as bluebooking questions when they have not found relevant law), then you can gently guide them to other issues that you might want to discuss first. If you have jotted down notes, you will be prepared to help focus the students; you can also use the end notes as a guide for pointing the students to what their priorities should be in the rewriting process.  However, don’t put off a student’s questions altogether, even if they are concerned about less important issues.  Provide them with a source (such as the course textbook or the Bluebook) to answer the question or get to it later – either at the end of the conference or in a follow-up email.

Student: I don’t understand how to bluebook cases.

Teacher: Bluebooking cases can be tricky, and I’ll give you some helpful resources to look at before we end the conference.  First, though, let’s focus on using the best cases before we worry about how to cite them.  How did you go about researching the cases?  What is your plan for finding more relevant law for each element?

Thus, as you prepare for each student’s conference (and often as you comment on the student’s paper), decide what that student most needs to work on next.  What do you want the student to take away from the conference?

Ideas come first:  (1) Has the student addressed the correct issue(s) and found the most relevant law?  (2) Has the student interpreted the relevant law in a way that is acceptable within the legal discourse community, or has he misinterpreted the law?  (3) Does the document as a whole meet the expectations of the legal reader, considering the purpose, scope, and stance of the document?

Next is organization:  (1) Are the legal issues organized in a clear and coherent manner within the document?  (2) Within a particular legal issue, are the elements of proof and applicable rules organized effectively?  (3) Within the discussion of a particular element or legal rule, is the discussion organized effectively?  If the substance of the legal analysis is correct and complete and the organization of the paper is clear and coherent, then the conference can focus on less important issues like word choice, sentence structure, citation format, and grammar.

The conference is not a device for teaching students everything they need to know to create a perfect document.  It is ideally a device for providing specific, targeted guidance to a student regarding the most important issue for them to focus on in the next piece of writing, and a student will leave an effective conference with a clear sense of what their next steps will be.

6. Actively Listen

Let the students speak first about the document so that they can voice her concerns, questions, or comments.  Listen carefully so that you get a sense of the student’s perspective.  Let the student ask questions; answer them and ask questions as well, from the perspective of the reader. If you find yourself doing most of the talking during the conference, you are not being effective.  Students learn more by doing and reflecting on what they have done. So let them talk.   Try to actively listen to what they say and respond by repeating it back and making sure you understand what they are asking before trying to answer their questions.  Often times, you will find that they are asking a different question than you originally thought.

Example:

Student:  I really struggled with trying to draw an analogy to this case. It just seems so different from our case.  Do I really need to use it if I think it just doesn’t apply?

Teacher:  When you say you think it doesn’t apply, what do you mean by that? Why do you think it is different enough from our case that it is inapplicable? Walk me through it, and maybe that will be the basis for a distinction — or maybe we can find ways in which it is analogous based on more abstract principles rather than specific facts.

Student:  Your comments say that I need to incorporate more authority, but I have discussed every case that I found that seemed relevant. Where am I supposed to find more authority?

Teacher:  You say that you’ve discussed every case that you found that seemed relevant. Let’s talk about your research process. What cases did you find, and which ones did you rule out as not relevant — and why did you decide they weren’t relevant?

7. Focus on the Document and Do Not Make it Personal

Just talking about the document in general terms is not nearly as helpful as looking at specific pages and discussing how to improve them. In addition, students take their writing very personally and therefore can become defensive of their written documents.  They may try to spend the conference defending their decisions instead of trying to improve.

Therefore, try to focus on the document as opposed to the student. When the student says “I,” listen to what they are saying about what they were trying to accomplish, and then ask them to show you a specific reference in the document that illustrates their intent.  Likewise, don’t respond by talking about yourself.  Instead, focus on what the audience or typical legal reader might expect from the document and how the legal reader might respond to the particular sentence or section — and why the legal reader would likely respond in that manner.  Discuss ways in which the student could accomplish that purpose in the particular section of the paper (if it is a legitimate approach for a lawyer to take) that would be less likely to be misinterpreted by the legal reader.

Student: I think I understand case comparisons but you just don’t get what I mean.  You just have a different style than me.

Teacher: Show me a specific example of a case comparison in the document and we can discuss what the legal reader’s response to it might be, and maybe we can come up with         some ways to keep your own voice but still give the legal reader all of the information she needs to understand how the case is helpful.

Student:  You said that this argument was not supported by authority, but I cited three cases that all seem relevant.

Teacher:  Let’s talk about how these cases support the argument in this section. The legal reader will want to see more than just citations, but will want you to walk them step-by-step through how the cited authority leads to the conclusions you reach about the client’s case.

8. Use Effective Examples from the Student’s Own Writing

Many students will be frustrated and feel as if they cannot do anything correct in their writing.  Therefore, when discussing ways to improve different facets of the writing, try to point to places within that student’s document where they have written effectively.  Even if there are no strong examples of a particular issue in the student’s own writing,  you can often find examples where they have a good start on something that you have asked them to focus on, and you can ask them to rework it during the conference.  If they leave the conference with an effective example that they have rewritten with your guidance during the conference, they will have gained the tools to make similar improvements throughout the document on their own.

Student: I don’t understand how to write a clear topic sentence.

Teacher: Well, let’s look on page 3 to a topic sentence you have already written that is effective. Then we can discuss why that one is effective and you can compare it to some of the others that are less effective.

Student:  This comment says that I need to draw a more express analogy to the precedent, but I don’t know how I could make it any more express.

Teacher:  Remember that your reader needs you to walk through the analogy and explain why/how the facts of the precedent case are similar to the facts in the clients case in ways that are relevant to the legal rule. You did a really nice job of this on page 4 when you were addressing the second element. There, your rule was clear and concrete and the reader could see how the facts connected to the rule. Let’s walk through that analogy and then we can discuss how you might incorporate the same techniques in this section.

9. Have the Student Rewrite and Revise

If possible, have the student rewrite specific parts of the paper that you are discussing right there in your office so that you can watch the rewriting process up close to ensure they are understanding your point.  That way, the student walks away from the conference with some of the rewriting started, an approach to the rewriting process that can translate to other parts of the document, and a good idea of how much time the rewriting process will take.

Student: So the rule should be revised to incorporate the exception in X case?

Teacher:  That’s one option. Let’s try to brainstorm some possible rules that are consistent with X case that would still be consistent with the other three cases you discuss in this section. How might you rewrite the rule?

10. Give the Student Options

During a conference, students will often ask how to “fix” a particular issue.  Instead of simply telling them how you would make the changes, try to provide multiple options for the student.  That way, the student will understand that there are multiple “correct” choices available and can make informed choices instead of just “fixing” it the way you suggest. Make sure to follow through on these options, by asking the student how he will proceed.  By thinking through the different options, the student will understand the reasons for the changes and how rewriting can better inform the reader.  This process will help students to rewrite this document effectively, and more importantly, help them become their own editors in future documents.

11.  Help the Student Retain Information through Repetition and Summary

Students can only retain so much information at a time. A successful conference can often cover a lot of ground. Therefore, at the end of the conference, ask the students to summarize  – and preferable write down – what they have learned from the conference and what next steps they will take on their document.  That way, you can correct any misunderstanding and the students will have their notes when they sit down to rewrite the paper. If the student is able to tell you their next three steps in the rewriting process, and if you agree that those steps should be the student’s main priorities, the conference has been successful.