Taking Legal Communications Seriously
Henry H. Perritt, Jr.
The ability to communicate ties together an increasingly diverse legal
profession. Yet law faculties are ambivalent about how to teach this important
skill. Litigators and litigation associates in law firms must write persuasive
memoranda and briefs, drawing upon the product of good legal research. For
decades, almost every first year law school program has explicitly sought to
teach law students the skill of writing briefs. But litigation is hardly the
only context in which lawyers must communicate. Transactional lawyers must draft
documents that express the terms of a "deal." Often, the most
challenging deal document is not one that can be copied mostly from a formbook;
it is a simple "term sheet" that captures the essence of party
understanding on one or two pages. Lawyers representing individuals must be able
to communicate clearly with their clients to help clients crystallize their
goals and evaluate how the law can help them realize those goals. Lawyers
involved in the public policy arena must communicate to the general public,
explaining why an issue should concern the ordinary citizen. In-house lawyers
often must clarify alternative strategic directions for an enterprise.
This partial inventory of lawyer communications shows that oral
communications skills may be as important as written ones; yet few law-school
based legal writing programs address oral communication outside the context of
an oral argument. It suggests that transaction-oriented communications and
counseling is as common as litigation advocacy; and deserves more attention in
law school curricula.
During the last 20 years, the legal academy has engaged in a debate over how
best to teach legal writing. As with any debate involving complex institutions,
disagreement over basic issues continues even as new aspects of the debate focus
on specific questions arising from resolution of basic questions. Thus, in some
law schools, faculties continue to be divided over whether their institutions
should teach legal writing at all. Others agree that explicit attention to legal
writing is appropriate, but disagree over how prominent a place legal writing
should occupy in the curriculum, and how legal writing programs should be
staffed. A large amount of energy has been invested in efforts to increase the
status of specialized legal writing faculty.
Almost 20 years ago, the faculty of the Chicago-Kent College of Law decided
that teaching legal writing skills was an important part of its responsibility
to offer sound professional education. It developed a model in which full time
faculty were recruited to teach legal writing, and in which legal writing
instruction occurs in all three years of the basic JD curriculum. Law students
were required to do more writing and graded rewriting. They received careful
thorough critique from faculty members, and explicit classroom instruction on
legal method, persuasion, and the structure of different writing performances
But the revolution begun by those steps is incomplete. The litigation context
dominates the first year legal writing curriculum. Little attention is given to
oral communication outside the oral argument setting. Some exercises and some
courses involve communications skills needed by transactional lawyers, but the
effectiveness of legal drafting courses too often depends on the luck of the
adjunct draw. The communications skills used by personal counselors and public
policy advocates and in corporate strategic analysis usually receive no
attention. Almost nothing has been done to learn from teachers of written and
oral communications skills outside the law school context.
Equally troubling, the "professionalization" of the teaching of
legal writing has defined legal writing education as an autonomous discipline,
isolated from other higher education programs in communications, and
increasingly isolated from the concerns of regular tenure track faculties. This
has occurred even as legal scholarship in general has become less autonomous,
increasingly drawing upon insights from other disciplines such as economics,
political science, history, sociology, and literature itself.
Now is the time to begin a fundamental rethinking of how legal education
teaches the skills of legal communication. This is not simply a matter of
resequencing the exercises in traditional first year legal writing courses. It
is not simply a matter of determining appropriate compensation policy or job
security for teachers of legal writing. It is not a matter to be sloughed off to
a director of legal writing and ignored by the faculty at large. It is not a
matter of concern only to local and regional law schools whose students may
begin the study of law with poorer writing skills than students at elite law
schools. It is a matter that goes to the heart of being an effective lawyer, and
therefore a matter that should occupy center stage in any assessment of the
effectiveness of a law school's program.
This essay is intended to sketch the agenda for a serious discussion
throughout the legal academy of how to teach communications skills to law
students; specific programmatic recommendations must arise from that discussion.
At this stage it is possible to offer only to offer some hypotheses and
propositions to inform the discussion.
1. Link the teaching of communications skills to the teaching of
rhetoric outside the law school context.
Most law professors now recognize that law is not an autonomous
discipline; law expresses social values and institutionalizes political
decisions. Scholarly inquiry in law must be informed by knowledge in the
social sciences, humanities, and technology. Similarly, programs to teach
communications skills to law students must be informed by 3000 years worth
of inquiry into rhetoric. Legal communications curricula should draw upon
best practices derived from more than a century of effort to teach English
composition and public speaking at the undergraduate level. Legal writing
as a law school subject should draw more fully on rapidly expanding legal
scholarship in the law and literature field. One branch of the law and
literature inquiry examines the role of "story telling" in legal
rhetoric. Trial lawyers know that a case is most persuasively presented as
a "story." Law student communication skills can be improved by
more explicit integration of story-telling theory and practice.
2. Legal communication instruction should emphasize techniques of oral
communication as much as techniques of written communication.
Most lawyers communicate orally more than they communicate in writing.
Communications skills training should seek to improve oral communications
skills as much as improving legal writing skills. But practicing a few
oral arguments in a simulated appellate court setting is hardly enough.
Lawyers make presentations, give speeches, and participate in, or lead,
group discussions far more often than they make oral arguments. A young
man or woman should not graduate from law school knowing less about how to
make a speech than he our she would learn from a six-session Dale Carnegie
course or from six month participation in Toastmasters
In expanding its mission beyond writing and appellate argument, legal
communications instruction should teach how to use technology effectively.
PowerPoint presentations are a staple of business communications.
Lawyers should know how to design and deliver effective slide
presentations. They should know when slides get in the way of effective
communication. They should know something about designing an effective
visual aid. They should understand how to direct audience attention
appropriately to a visual image or to their voice.
Additionally, effective trial lawyers have learned that video can
dramatically enhance the power of their message in a courtroom. Effective
use of flowcharts, still images, and full motion video should be an
integral part of instruction and trial techniques.
3. Legal communications instruction should be integrated with other
parts of the law school program.
The ability to communicate is central to being an effective lawyer.
Accordingly, instruction in legal communications should not be segregated
from other parts of the law school experience and delegated entirely to a
specialized teaching corps. Every regular law school course offers
opportunities for analysis of argumentation, close textual analysis, and
exploration of the rhetoric of legal opinions. Taking advantage of these
opportunities requires an institutionalized commitment for all members of
law faculties to cooperate in inviting student attention to good and bad
examples of legal communications throughout the legal process.
Courses in legal writing should not be separated organizationally or
pedagogically from trial advocacy and clinical programs, or from courses
in mediation and negotiation. Not only should law faculties examine
opportunities to reduce the separation between doctrinal courses and
skills courses; they should also integrate skills instruction in every
course in the curriculum.
Such integration is possible only if all law school faculty seek a
deeper understanding of the goals and methods of the several parts of a
law school program. Clinical instruction should not be left only to the
clinical faculty. Legal communications instruction should not be left only
to the legal writing faculty. Trial advocacy should not be left only to
adjunct faculty comprising trial lawyers. Teachers of doctrinal subject
matter should solicit insights from their legal writing and clinical
colleagues as well as from the practicing bar and vice versa.
All kinds of law teachers need to work together, shaping appropriate
curricular experiments, with better assessment of the results than is
typical in legal education.
4. More serious scholarship is needed.
A Westlaw search conducted on 18 July 2001 turned up 64 articles with
the term "legal writing" in their titles. Only a handful
involved any deep analysis of the legal communication process. Most
involved tips for more effective writing, published in practitioner
journals. Many advocated greater status for legal writing faculty. No
doubt, other search terms would have revealed a larger number of articles.
It is possible that more good content is written about legal
communications skills than is accepted for publication by law reviews.
Still, the legal academy surely could benefit from more serious work on
the processes of legal communications, exploring how the theory of
rhetoric in general should be adapted to the particular needs of the legal
profession, linking scholarship in law and literature to teaching
communications skills to law students, and relating theories of human
interaction to effective communication between lawyers and lay people. As
such legal scholarship materializes, there is no reason that customary
standards for good scholarship should be relaxed; there is no reason that
the best legal scholars should refuse to give the subject their attention.
5. Law faculty should help law students learn from their work
The image of law students completely engaged with each other and their
teachers in an academic setting, spending their out-of-class time in study
groups and cafeteria conversations discussing the latest Supreme Court
case is a fantasy. Most law students work. Many consider their work
experience a more relevant bridge to what they will do after law school
than their classroom activities. Failing to integrate student work
experience with academic guidance represents the great lost opportunity of
American legal education at the beginning of the 21st Century.
Important differences between the institutional structure for delivery of
legal services and the delivery of healthcare make it difficult to
reconstruct significant parts of legal education along the lines of
clinical education in medicine. Nevertheless, law faculty should make more
effort to connect the guidance they give their students with the
opportunities the law students have outside law school. Our students
should be invited to relate "learning to think like a lawyer"
with "working as a lawyer’s apprentice."
The opportunities exist with respect to everything students should
learn in law school—torts as well as trial techniques, contracts as well
as communications with clients.
But given the desire of legal employers for better communications
skills in their law clerks and associates, particular opportunities exist
to bridge the communications elements of law student practice experience
with good instruction on legal communications in law schools. Drafting
assignments from part time employment could and should be brought into
legal writing classrooms. Student uncertainty about how best to
communicate with partners and clients can provide much of the raw material
for instruction in informal oral communication. Communicating to one’s
classmates and teachers about ones part time job can provide opportunities
for improving presentation skills.
So what should be done to test these hypotheses and to extend the revolution
begun by a serious law school commitment to teaching legal writing? A major
strength of legal education in America is its diversity. The best intellectual
capital results not from the execution of some central plan but by individual
law professors in particular law schools writing law review articles and
organizing symposia. We can all do our part to take legal communications more
seriously. Those who specialize in the teaching of legal writing should invite
other members of the legal academy to share their insights, particularly those
who have thought about law and literature. Everyone can seek out the knowledge
available from the academic disciplines of rhetoric, English composition, public
speaking, and drama. As all of us engage in the ongoing process of revising the
structure of our curricula, we should be more willing to decompartmenalize
doctrinal instruction, legal writing instruction, clinical education, and trial
We should be more flexible in utilizing the techniques—and experimenting
with the contracting out—of some forms of skills instruction. What would be
wrong with a legal communications program that requires law students to take a
Dale Carnegie course in basic public speaking techniques? The point is not that
this kind of instruction should be contracted out; the point is that the
approaches used in Dale Carnegie public speaking courses and by Dale Carnegie’s
competitors may be worth trying in the law school context.
If we increase our emphasis on teaching oral skills, it also may be
appropriate to adapt our traditional examination techniques. Other disciplines
use oral examinations as well as written ones at the doctoral level. We should
formally evaluate our students’ ability to explain application of a legal
concept, face-to-face, as well as in writing.
In summary, we need to recognize the importance of explicit instruction in
communications skills; we need to acknowledge that lawyers talk at least as
often as they write; we need to be open to experimentation; we need to build on
the achievements of the first two decades of the legal writing movement.