Critiquing and Evaluating Law Students' Writing: Advice from Thirty

Critiquing and Evaluating Law Students' Writing:

Advice from Thirty-Five Experts

Anne Enquist*

I. INTRODUCTION

Like all new law school professors, novice legal writing faculty

have a great deal to learn about their new profession. Like any new

faculty member, they will be selecting texts, preparing syllabi, and

thinking through their pedagogical approach to the course. Unlike

other new law professors, though, legal writing faculty have the

additional challenge of dealing with all of those legal writing student

papers that will begin piling up on their desks, even during the first

month of their course. Doing a good job of reading, analyzing, and

grading these papers is a daunting task, even for the most experienced

legal writing professor. Most novice legal writing professors admit to

a mixture of dread and trepidation with a touch of curiosity and a dash

of expectation as they approach that first stack of papers.

Only a few novice teachers will have had the benefit of some

teacher training provided by the director of their legal writing program.

A few more may have read a bit of advice on the subject in the

teacher's edition of their legal writing text. Still more will lean on the

more experienced legal writing faculty members in their law school for

some quick tips about what to do. Most, however, will just jump in,

hoping for the best.

They will adopt some kind of composite approach based on what

they remember about how their own legal writing professor critiqued

their writing, how their writing was critiqued when they were in

practice or when they clerked, how their writing was edited if they

were on law review, and how an undergraduate or even a high school

teacher commented on their papers. Add a smidgen of good intentions

and a dollop of common sense and that may be all most novice legal

* Associate Professor

Legal

Writing and the Writing Advisor at Seattle University

School

Law. The author would like to thank Professors Jessie Grearson and Laurel Oates for their

suggestions

and support on this Article.

1119

1120 Seattle University Law Review [Vol. 22:1119

writing professors have to prepare them to do one of the most

challenging tasks of their professional lives.

We can do much better. As a profession, we must take the

responsibility to gather the best thinking of the experienced members

of the legal writing community of scholars and share that with those

who are newcomers to the teaching of legal writing. The foundation

has been laid for just such an undertaking. Experienced legal writing

faculty have been convening for over fifteen years now at the Legal

Writing Institute national conferences to discuss all the aspects of their

teaching responsibilities, including critiquing and evaluating law

students' writing.

While there are some differences of opinion about

what is the best way to comment on and grade law students' writing,

a consensus seems to be developing based on the experience and

insights of those in the profession who have done the job the longest

and survived to tell about it.

To help articulate this consensus, I selected thirty-seven experi-

enced legal writing professors and asked them to respond to a

questionnaire about critiquing and evaluating law students' writing.

My goal was to gather and record their wisdom, insights, and

experience for other legal writing professors, particularly those who are

new to the field.

My criteria for selecting the thirty-seven was that they must have

had five or more years' experience commenting on and grading law

In 1998, for example, Tracy L. McKinzie gave a session, entitled "Commenting

Relationship," on the relationship between constructive comments and students' perception of

their professors, in 1996, Grace Wigal, Tom Patrick, and Lisa Eichom presented "Evaluating

Student Papers"; in 1996 and 1994, John C Dernbach, K.K. DuVivier, and Joseph Kimble

presented workshops on "Evaluating Student Papers", in 1992, this author presented "Research

on Critiquing Students' Writing- What are We Doing and is it Working?"; in 1990, Mary Beth

Beazley and Tern LeClercq presented "Evaluating Student Writing Assignments," this author

presented "Research on Critiquing Student Papers A Preliminary Report," and Brook K Baker

and Knsten Woolever presented "Diagnosing Writing Problems- Theoretical and Practical

Perspectives for Giving Feedback", in 1988. a two-hour session was offered on "Evaluating

Student Papers", in 1986, Mary Lawrence, Ellen Mosen James, Paul Bateman, Renee Hausmann

Shea, Christine Metteer, and Jill Ramsfield presented a workshop on "Evaluating Wnting

Assignments", and in 1984, the program lists a workshop on "Evaluating Student Writing "

In recent years, only two studies have been conducted about commenting on and

critiquing law students' wnting In 1996, this author published a study of four students' ratings

of the effectiveness of the comments made on their legal writing by five legal writing instructors

See Anne Enquist, Critiquing Law Students' Wnting: What the Students Say Is Effective, 2

LEGAL WRITING 145 (1996). In 1994, the Law School Admission Council and Law School

Admission Services published Research Report 93-06, which descnbed a taxonomy of the

elements of the legal memorandum and the relative weight each element had in the judgment of

the legal writing faculty judges who read and rated 237 legal memoranda written by first-semester

law students See H. Breland and F Hart, Defining Legal Writing An Empirical Analysis of the

Legal Memorandum, LSAC Research Report Senes (1994).

1999]

Law Students' Writing

1121

students' papers and that at the time they filled out the questionnaire

they must be currently teaching a legal writing course that requires that

they comment on and evaluate student writing.

In short, I was

looking for experts who were still in the trenches and who had not left

the teaching of legal writing, at least completely, to administrative

positions or nonwriting courses.

In addition, because I assumed that there is often a local

consensus at individual law schools, I also attempted to ask people

from different law schools, even though there may have been more

than one legal writing professor with more than five years' experience

at a given law school.

Thirty-five of the thirty-seven completed and

returned the questionnaire.

Respondents to the Questionnaire

Professor

Paul Albert Bateman

Mary Beth Beazley

E. Joan Blum

Susan Brody

Bari Burke

Charles Calleros

John Dernbach

School Affiliation

Southwestern University School

of Law

Ohio State University College of

Law

Boston College Law School

The John Marshall Law School

University of Montana School of

Law

Arizona State University College

of Law

Widener University School of

Law

3 Two of the respondents were not teaching a legal writing course at the time of the

questionnaire Nancy Jones, who is the Director of the Writing Resource Center at the

University of Iowa College of Law where she conducts writing conferences with law students, and

Mary Lawrence, who no longer engages in classroom teaching because of

disability

4 The one exception is that two of the respondents to the questionnaire are from Boston

College Law School

wish to extend my deepest appreciation to all 35 respondents to the questionnaire The

generous gift of their time and expertise is testimony to their dedication to teaching legal writing

1122 Seattle University Law Review [Vol. 22:1119

Professor

Nancy Lawler Dickhute

K.K. DuVivier

Jane Kent Gionfriddo

Peter Jan Honigsberg

Pat Hugg

Sam Jacobson

Steve Johansen

Nancy L. Jones

Joseph Kimble

Mary S. Lawrence

Jan Levine

Jethro K. Lieberman

Molly Warner Lien

Christy McCrary Nisbett

Kathleen H. McManus

Kathryn Mercer

Ross Nankivell

School Affiliation*

Creighton University School of

Law

University of Colorado School of

Law

Boston College Law School

University of San Francisco Law

School

Loyola New Orleans Law

School

Willamette University College

of Law

Northwestern School of Law

Lewis and Clark College

University of Iowa College of

Law

Thomas M. Cooley Law School

University of Oregon School of

Law

University of Arkansas

(Fayetteville) School of Law

New York Law School

Chicago-Kent College of Law

University of Texas School of

Law

Marquette University School of

Law

Case Western Reserve Univer-

sity Law School

Emory University Law School

1999] Law Students' Writing

1123

Professor

Richard Neumann

Laurel Oates

Alice Perlin

Teresa Godwin Phelps

Diana Pratt

Jill Ramsfield

Nancy Schultz

Helene Shapo

Ruth C. Vance

Marilyn Walter

Cathleen Wharton

School Affiliation*

Hofstra University School of

Law

Seattle University School of Law

(formerly University of Puget

Sound School of Law)

Loyola University of Chicago

School of Law

Notre Dame University School

of Law

Wayne State University Law

School

Georgetown University Law

Center

George Washington University

National Law Center

Northwestern University School

of Law

Valparaiso University School of

Law

Brooklyn Law School

University of Georgia School of

Law

a. The school affiliations listed were those of the professors at the

time they responded to the questionnaire. Several changed

affiliations between the time of the questionnaire and the publica-

tion of this Article.

1124

Seattle University Law Review [Vol. 22:1119

The average number of years of experience at the time the

respondents completed their questionnaires was slightly more than

eleven years.

Respondents' Years of Experience

Teaching Legal Writing

Years

5.5

Average years

of experience:

11.1 years

Number of

Respondents

1999]

Law Students' Writing

1125

Together, the group represented 389.5 years of experience reading,

commenting on, and evaluating law students' writing.

The thirty-five who responded to the questionnaire were generous

in sharing their ideas and expertise. Many appended handouts used

within their own law schools that summarized individual programs'

policies and recommendations about writing comments on and

evaluating student writing.

This Article is a compilation of the experts' responses to the

twenty-eight questions on the questionnaire. It represents the thinking

of some of the most respected and experienced members of the legal

writing academic community about what may well be the most

important responsibility facing new legal writing professors: comment-

ing on and critiquing their students' writing.

This Article will be divided into seven sections. Section I is the

Introduction. In Section II, the Article briefly discusses the impor-

tance the respondents assigned to commenting on and grading papers.

Section III is a summary of the respondents' advice to new legal

writing professors, including their suggestions about teaching strategies,

warnings about potential pitfalls, and advice about comments to avoid.

In Section IV, the Article discusses how the respondents learned what

they know about critiquing papers and how their schools prepare new

legal writing professors to critique papers. Section V discusses the

differences of opinion among the respondents about critiquing student

papers. Section VI describes the need for additional research on

commenting on and evaluating law students' writing. Section VII, the

conclusion, summarizes the effective teaching strategies, potential

pitfalls, and comments to avoid.

II. THE IMPORTANCE OF COMMENTING ON AND CRITIQUING

LAW STUDENTS' WRITING

New legal writing professors may look at the many tasks they are

expected to master and wonder where they should begin. Where

should they focus their time and energy? According to the experts

who responded to the questionnaire, commenting on and grading

papers should be at or near the top of their list.

6. These questionnaires are on file with the author. All quotations from the experts in this

Article

are drawn from the questionnaires or from materials the experts submitted with the

questionnaires.

1126

Seattle University Law Review [Vol. 22:1119

Of the thirty-four respondents

who answered question 24, which

asked them to rank the importance of the various activities that a legal

writing professor does as part of his or her job, eleven rated comment-

ing on and grading papers as number 1, the most important activity.

Another seven respondents rated several things, including commenting

on and grading papers, as number 1, for a total of eighteen number one

ratings out of thirty-four responses.

Of the remaining sixteen

respondents to this question, eight rated commenting on and grading

papers as number 2,

the second most important task, and six rated it

as number 3.

One respondent declined to answer the question, stating "I can't rank these. I can't say

that preparing for class is more or less important than teaching class, or that commenting on

student papers is more or less important than student conferences."

8. Laurel Oates, for example, gave a number 1 rating to designing assignments, preparing

for class, commenting on and grading papers, conferences with students, and teaching class. Her

comment on her rankings was "Sorry, but I can't separate out the Is. They are all interrelated

and equally important."

9. For nine of the respondents, designing assignments was the number 1 task. Somewhat

surprisingly, only four respondents selected teaching class as number 1. Two selected preparing

for class as number 1, and one respondent selected conferences with students as number 1.

10.

Several respondents complained about being asked to rank the tasks and felt that any

ranking was somewhat arbitrary. Several noted that the different tasks were so interrelated that

it was difficult to rank them separately. Others said that although they themselves ranked

activities that involved direct student contact (teaching class, conferences with students, and

commenting on and grading papers) as top priorities, their institutions had somewhat different

priorities and would rank scholarly writing number one for tenure. Kathleen H. McManus noted

that

[t]he ranking options . . force us to choose between students, professional growth, and

institutional collegiality. 1 think that ranking any one of these professional faces above

the others places us between a rock and a hard place. There is a synergy of professional

growth and development that links these three areas [students, legal research and writing

colleagues, and institutional colleagues] so intimately that to rank one above the others,

diminishes die whole. . . .

1999] Law Students' Writing

1127

Question #24

Rank the importance of the various activities th

professor does as part of his or her job, using 1

important.

designing assignments

scholarly reading

attending/presenting at conferences

committee work for your institution

commenting and grading papers

other (please specify)

conferences with students

preparing for class

teaching class

scholarly writing

Comments about your rankings?

at a legal writing

as the most

Even the two respondents who rated commenting on and grading

papers as number 5 and number 6 in importance among the legal

writing professor's activities still checked that written comments on

student papers were "of the utmost importance" on question 23, which

asked "How important do you consider written comments to be on

student papers?" Indeed, on that question, twenty-nine of the thirty-

five respondents checked "of the utmost importance," five checked

"very important," and only one checked "somewhat important.""

11.

Richard Neumann checked all of the top three ("of the utmost importance," "very

important," and "somewhat important") and commented that it "depends on the teacher's style

and ability. Some students learn in conversation; some learn by comments."

1128 Seattle University Law Review [Vol. 22:1119

Question #23

How important do you consider

student papers?

of the utmost importance

very important

somewhat important

not very important

unimportant

Why?

written comments to be on

The tag question "why?" on question 23 elicited many responses

about why written comments on student papers are so important.

Sam Jacobson responded, "How else will students know how they

can improve? They thought they were doing it right when they wrote

it; without comments, they won't know what or how to change for the

next assignment."

"Our feedback helps the students get used to what's expected in

the legal culture," added Ruth Vance.

"Students quickly exhaust the benefit that they can derive from

lectures and textbooks. They learn much more by participating in the

writing process and getting specific feedback on their work," replied

Charles Calleros.

"With classes as large as ours, they [written comments] are the

best way I have of communicating with the student about his or her

writing, specifically. Writing is a very individual process; individual

feedback is crucial," answered Cathleen Wharton.

The teaching opportunity that written comments afford was yet

another common and related theme in responses to the question about

why comments are so important.

12.

A few of the respondents pointed out that student-teacher conferences were even more

effective than written comments. For example, Steve Johansen said that although written

comments are "the primary form of interaction between students and myself . . . , individual

conferences tend to be

helpful. Unfortunately, the time for individual conferences is more

1999]

Law Students' Writing

1129

Mary Beth Beazley wrote,

I checked "of utmost importance" because I think that student

papers are the legal writing equivalent of the law classroom's

Socratic dialogue. In the classroom, the student engaged in the

dialogue learns the most. In legal writing, students learn the most

when they are engaged in dialogue with their teacher about their

writing, and, unlike the classroom discussion, every student is

engaged in the writing process. Classroom work in legal writing is

fine for presenting the many universal truths about legal writing, but

unfortunately most students don't recognize their strengths and

weaknesses in a classroom discussion. As I put up examples of bad

writing on the overhead, I can almost hear some students thinking

"I'm sure glad I don't have that problem." Individual comments

bring home to the students the specific problems that they have—as

well as the specific strengths.

Nancy Schultz pointed out, "It's [written comments on the last

paper] what students will have in front of them the next time they sit

down to write."

"This [written comments] is the ultimate one-on-one text for

teaching," advised Jill Ramsfield.

In short, the experts agree that providing written individual

feedback on law students' papers is one of the most important, if not

the most important, teaching moment legal writing professors have.

Consequently, it is critical that new legal writing professors begin their

careers with the best information available on how to go about

critiquing student papers. The section that follows outlines what the

experienced legal writing professors believe novice teachers should

know.

III. ADVICE TO NEW LEGAL WRITING PROFESSORS

If experienced legal writing professors consider commenting on and

grading papers an extremely important part of their work, then it

follows that new legal writing professors should concentrate on

developing these skills. To help new teachers develop these critiquing

and evaluating skills, the experts offered suggestions about effective

teaching strategies, warnings about potential pitfalls, and advice about

comments to avoid.

limited than I would like." Paul Bateman commented that the importance of written comments

"depends. Sometimes 'see me now' will work better than a two-page comment. . . ."

1130 Seattle University Law Review [Vol. 22:1119

Effective Teaching Techniques

Limiting the Number of Comments

Highest on the experts' list of teaching strategies were the practices

of limiting the number of comments on a given paper

and using

positive feedback both to point out the student's strengths and to

encourage. In their responses to question 21, "Are there particular

strategies for commenting on and grading student papers that you

think novice legal writing faculty should be made aware of?" eleven

of the experts advised against marking everything that is wrong with

a student's paper.

These respondents noted that novice teachers, in

an effort to be complete, were often guilty of overkill. The effect of

too many comments, they warned, was overwhelmed, frustrated, or

angry students. Instead, they advised that legal writing professors

should either (a) read the paper through and then decide the major

areas of concern on which to focus the comments, or (b) determine the

critiquing priorities before critiquing a set of papers and then limit the

comments to those areas.

'' Don't think you have to mark everything," said Richard

Neumann. "There is a limit to what a student can learn from a given

paper. Skim read before you start to mark so that you have a sense of

what is most important to mark."

"Students can easily be overwhelmed with too many comments,"

added Mary Beth Beazley. "It's better to get them to learn one or two

things well than give them scattershot instruction on 40 things that

don't stick."

Teresa Godwin Phelps agreed. "Focus on important issues," she

said. "Correct or comment on only those things students have been

taught."

"Less can be more," added Susan Brody. "Don't try to correct

everything at once. It's impossible. Just make sure the students know

you are not correcting everything at once and there is always more to

improve even if you assign an 'A.'"

Like Brody, several other respondents also urged novice teachers

to emphasize to their students that they were not marking everything

13.

While there was considerable agreement that limiting the number of comments was

more effective than marking every conceivable problem, it was unclear from the responses just

how many comments were too many.

14.

Another sixteen respondents made essentially the same point about the problem of

writing too many comments on a paper when they commented on potential pitfalls for new

teachers.

1999] Law Students' Writing 1131

and that simply making the noted changes and corrections did not

guarantee the student an "A."

If a legal writing professor is making extensive comments on

student papers, though, Nancy Schultz suggested that the professor

"warn the students ahead of time that they may experience a certain

amount of shock at the condition of their papers" when they are

returned.

Although many, but not all, of the experts recommend limiting the

number of comments on students' papers, this advice is only somewhat

helpful to novice teachers. While almost everyone seems to agree that

it is a mistake to mark everything, the obvious question is how much

is too much. At what point does a student reach a saturation point

where he or she cannot absorb another criticism or suggestion? At

what point might a student feel so overwhelmed by the comments that

he or she simply stops reading them?

Other follow-up questions to the advice about limiting the number

of comments also beg to be asked. What about the interaction

between classroom teaching and paper critiquing? Is it possible that

students may be more receptive to, and therefore able to benefit from,

extensive critiques if the legal writing professor has established a good

rapport with the class? How do student expectations about critiques

affect their ability to learn from more comments? What effect do

grades have on a student's ability and willingness to learn from

extensive comments?

These questions warrant further study. In the meantime, however,

we should remember that commenting on and evaluating papers do not

occur in a vacuum. They are part of the larger learning environment.

Consequently, when we begin to conclude that, in general, limiting the

number of comments is an effective teaching technique, we must

15.

Two of the experts who responded to the questionnaire added cautionary notes to the

building consensus that limiting the number of comments on student papers was an effective

teaching technique. "Because of some of the results from Anne Enquist's earlier research on the

number of comments, recently I have consciously tried to cut back on the number of comments

I write on student papers, and for the first time, I have had a few comments on my evaluations

that I'm not writing enough comments," said Laurel Oates. Kathryn Mercer agreed,

I have often thought about commenting less as students may be overwhelmed and

defensive with so many suggestions. Past [national] conferences have suggested that too

many comments is a disservice to students. But my own experience, and my yearly

evaluations suggest otherwise. For the last 7 years we have asked students to evaluate

whether my and other instructors' written comments are effective. We receive the

highest ranking in this area. So I am reluctant to change.

Elsewhere, Mercer added, "I realize that some students are overwhelmed by the purple ink. But

most seem to be able to absorb the information and revolutionize their writing."

1132

Seattle University Law Review [Vol. 22:1119

remember that paper critiques are one piece—albeit a terribly

significant piece—of a larger whole.

We also need to remember that there is strong agreement among

the experts that it is effective to limit the number of comments on

student papers and that a comprehensive, comment-about-everything

approach to critiquing is often counterproductive. In choosing what

not to comment on, however, the experts did not eliminate comments

about what the student had done well. In fact, their next most

common piece of advice was to remember to write positive comments

when they are deserved.

Giving Students Positive Feedback

Eleven respondents to the questionnaire recommended giving

students positive feedback as an effective teaching technique.

Many

of these experts said that novice teachers often focus exclusively on the

weaknesses in a paper and neglect to discuss its strengths.

"New legal writing faculty need to concentrate on the need for

positive comments and a positive tone," pointed out Molly Warner

Lien. She added,

They are often coming from a large firm environment where their

writing has been subjected to very critical review, and have an

understandable belief that students need similar "real world"

guidance. However, they forget that learning to write well is a

process and that students need practice and

constructive

criticism, as

well as an understanding of the standards applied in practice.

Even when some positive comments are included in a critique, a

few of the experts note that the extent of the comment is often a token

"good" in the margin.

K.K. DuVivier responded, "Over time I have tried to make my

comments more specific—-instead of writing 'good' next to a paragraph,

I'll write 'good thesis paragraph, but the conclusion could be stron-

ger."'

Looking for what a student writer has done well and commenting

on it requires a mental shift for some critiquers who may have

consciously or subconsciously viewed their critiquing role as one who

spots mistakes or shortcomings. And once this mental shift is made,

it may be dismaying to learn "good" or "well done" in the margin adds

little beyond a pat on the head. Like most good comments, those

16.

Four additional respondents made this same point in their answers to other questions.

1999] Law Students' Writing

1133

expressing specifically what or why something is well done take time,

energy, and insight. Perhaps staying focused on one's critiquing

priorities—the next suggestion made by the experts—is the best way

to stay aware of how the writer has fulfilled the goals of the assignment

and met, or even exceeded, reader expectations.

Developing Teaching and Critiquing Priorities

Nine different experts discussed the importance of the legal writing

professor having a clear sense of his or her priorities and conveying

these priorities to the students, both before the students write and

again in the comments on their papers. Several recommended using a

critiquing checklist to help keep these priorities in mind.

"Teachers must be clear about their criteria, and specific in their

description of those criteria, in advance," advised John Dernbach.

"Students appreciate this, and respect teachers more for doing so, even

if they don't like their grade."

Helene Shapo emphasized that it is important to plan an assign-

ment for particular purposes and then comment on the students' papers

with those purposes in mind. "Prioritize," added Laurel Oates.

"Know what it is that you want to 'teach' both to the class and to

individual students and then look for those things."

Once a paper's weaknesses have been identified, Paul Bateman

recommended that the legal writing professor "order the weaknesses so

[the student] understands which have priority." A "hierarchy of

concerns needs to be identified," added Jan Levine. "Deal with the

big picture first." Jethro K. Lieberman pointed out that a top priority

that is often forgotten "is whether the student has achieved a strategic

purpose."

To develop one's priorities, Sam Jacobson suggested that the legal

writing professor "go from broad to narrow. If the analysis is off, so

will be the organization. Curing the organization won't improve the

analysis, but improving the analysis may cure the organization

problems."

Priorities, then, should be clear at the outset of an assignment and

they should be used to evaluate students' work. Consequently,

teaching/learning priorities often become the basis for another much-

touted teaching technique: writing end comments.

Writing End Comments

The importance of writing end comments appeared in responses to

question 21 about effective teaching strategies and in responses to

question 13, "Do you write end comments on student papers?" and

1134

Seattle University Law Review [Vol. 22:1119

question 14, "Which do you consider more important—margin

comments or end comments? Why?"

Thirty-four of the thirty-five respondents'

write end comments

and, when asked which is more important,

eighteen of the thirty-

five said that end comments are more important than margin and

interlinear comments.

There was considerable agreement about why end comments are

important. Most felt that end comments served the special purpose of

giving the student an overview of his or her writing ability.

Alice Perlin explained:

End comments [are more important] because they give students

detailed information about the general areas they need to work on

as well as the areas in which they have done well. I think students

pay more attention to the end comments because they reflect overall

patterns. Many students Look at the margin comments as isolated

comments not related to a pattern.

"I find the specific margin comments easier to do, but think the

end comment is probably more important because it gives the student

a more complete sense of how the writing worked or didn't and is

probably more representative of how the average reader (judge/senior

partner) will come away from the piece," added K.K. DuVivier.

Many mentioned that students read the end comments more

carefully than the margin and interlinear comments and, because many

17.

The one respondent who does not write end comments, £. Joan Blum, uses some

margin and interlinear comments on the paper and then focuses most of her commenting energy

on oral comments, which she gives to die students on tape cassette. "These oral comments," said

Blum, "replace some of what I might say in margin or interlinear comments, and also replace the

end comment." Blum's technique is to read each paper at least twice from beginning to end. She

begins the taped critique after the first reading by giving a general summary of the paper's

strengths and weaknesses. She then goes back through the paper for the second reading, making

oral comments. A typical taped critique is 20-30 minutes in length. On her questionnaire, Blum

listed numerous good and bad points about the cassette tape critiques. Among the good points,

she said that "oral critique combined with nominal written critiques reaches students of more dian

one learning style" and that students like the oral critiques. At the top of her list of bad points

about oral critiques is the problem of managing all the tapes. Steve Johansen offers students the

option of oral taped critiques.

18.

Four of the seventeen who said end comments are more important seemed distinctly

reluctant to pick one over the other because they consider both so important. "A close call," said

Mary Beth Beazley. "End comments win by a nose because when done well (not always easy)

they give the student a picture of his or her writing ability as opposed to the problems with a

particular document."

19.

Only one respondent thought margin comments were more important than end

comments. Fourteen felt that margin and end comments were equally important. One

respondent did not answer this question, and one uses taped comments in lieu of an end comment

and most margin comments (see footnote 17).

1999]

Law Students' Writing

1135

legal writing professors use the end comment to outline for the student

what he or she needs to work on next, students use the end comments

when they revise or begin the next writing project.

Cathleen Wharton believes,

End comments ... are most carefully read by students, in my

opinion. Some students don't read margin notes at all, and it takes

some time to really reread the paper and consider the margin com-

ments. I have found it effective to integrate the two by referring to

specific margin notes in my end comment,

e.g.,

"Your analogization

needs to be more specific, see note p. 5."

"End comments are more important because the students read

them first. They can then look at the marginal comments for specific

examples," replied Diana Pratt.

"End comments [are more important] because you can prioritize

matters for the student and be sure to present an appropriate mix of

positive and critical comments. You can provide some direction to the

student for the next assignment," advised Kathleen H. McManus,

A few respondents offered variations on end comments: Christy

McGrary Nisbett writes a cover sheet rather than an end comment

because she wants the students "to look at them first so they can put

margin comments in context," and Jane Kent Gionfriddo writes end

comments at the end of sections of the paper. Gionfriddo worries that

end comments at the end of a paper may be too vague and general

"because it's difficult to spend that extra time drawing everything

together for the student." Instead, said Gionfriddo,

I have tended to make "end" comments at the conclusion of logical

sections of the memo. For instance, in a memo to a supervisor, I

try to make an end comment at the end of the thesis paragraph, at

the end of each issue, perhaps at the end of each issue's analysis of

the law and then application prediction on that analysis.

When asked to describe a typical end comment, including its

length, and any special features of these comments, the experts'

responses yielded several consistent teaching strategies. Most begin the

end comment on a positive note by discussing the strengths of the

paper and then follow with the weaknesses. The weaknesses are often

presented as a ranked, ordered list that the student should concentrate

on when rewriting or writing the next paper. Many try to conclude the

end comment with a word of encouragement. Many try to tie the

20.

Molly Warner Lien and Richard Neumann also attach "end" comments to the front

the student's paper.

1136 Seattle University Law Review [Vol. 22:1119

margin and end comments together. A few include an assignment,

such as rewriting a section, to be done before a conference.

Susan Brody responded,

I always say something positive—even if I must strain to do so. 1

then will identify three (maximum) types of errors that recur in the

paper, citing to the pages where they occur. I will ask the student

to rewrite some of the places indicated. If one type of error is one

that requires a lot of attention, I will limit the end comment to that

error, again asking the student to rewrite for our conference. . . .

Steve Johansen described a typical end comment:

My end comments summarize my feelings about the paper as a

whole. I always try to start with what the student did right—"John,

you've done a good job of organizing the first issue. Your rule

paragraph was clear and you applied your rule effectively." I then

try to point out areas of weaknesses—"However, you neglected the

most important case on the second issue and seem to confuse

binding and persuasive authorities (see comment p.6)." Finally, 1

try to give a positive, overall comment—"On the whole, a very solid

first draft. I look forward to your next version."

A number of the respondents have developed a specific structure

that they use when writing end comments. Jill Ramsfield uses the

structure outlined in the "Principles of Good Legal Writing" from

Legal Writing: Getting It Right and Getting It Written:

Content

Purpose

Organization

Style

Polishing

Christy McCrary Nisbett's cover sheet for the students' first full

memorandum has a subheading for the basic skills the student worked

with in the assignment. Below is an example she attached to her

questionnaire:

Identifying and focusing on the issue

Identifying and working with the rules of law (including synthesis

for two-case memo)

Giving key facts of the precedents to shed light on the rules

Analogizing and distinguishing cases

Providing counter-analysis

21. MARY BARNARD RAY AND JILL J. RAMSFIELD, LEGAL WRITING: GETTING IT

RIGHT AND GETTING IT WRITTEN 235-37 (2d ed. 1993).

1999] Law Students' Writing 1137

Coming to a legal conclusion

Organizing the discussion- T Ru P A C C

for each issue (or

subissue) to be analyzed

Introducing a legal discussion

Introducing paragraphs and case descriptions with effective topic or

transitional sentences

Using an appropriate tone and style (objective and professional, but

not stilted)

Citing authority effectively (use, placement, form)

John Dernbach uses a grading guide in which students get a

numerical score for discrete parts of their paper as well as the analysis

in the discussion or argument. He adds an end comment on the back

of the grading guide.

The length of typical end comments from each respondent ranged

from two to three sentences to several pages. A few of the respondents

said that the length of their end comments is fairly consistent from

student to student while others said that that the length of the end

comment varies greatly, depending on the individual student's needs.

Writing Margin and Interlinear Comments

Every respondent to the questionnaire writes margin and interlinear

comments on student papers.

Furthermore, a substantial number

of the questionnaire respondents felt that end comments and margin

comments were equally important and that a good critique required

both. The consensus was that end comments provide an overall

perspective while margin comments point out specific instances.

"They are equally important—one speaks of the forest, the other

the trees. Writers and readers need to operate with both perspectives,"

answered Nancy L. Jones.

Jane Kent Gionfriddo replied,

I think margin/interlinear comments are valuable because they allow

me to interact with what the student has thought/written right at

the point that he or she has written it. This may make it easier for

the student to understand the comment because the comment is

physically tied to the particular word, sentence, paragraph, etc. that

I am referring to. In addition, my writing the comment right next

22 T Ru P A G C {thesis, rule, precedent, application, counteranalysis, conclusion) is the

organizational mneumonic device Christy McCrary Nisbett uses to fit the class's textbook

23.

Although Joseph Kimble does written comments and critiques, he also recommended

that legal writing professors "consider reading, critiquing, and grading the papers with the student

present " He said that this technique has the benefits of being faster and more effective if the

professor sets time (units He added, "at first it's a little scary, but you can learn to do it well "

1138

Seattle University Law Review [Vol. 22:1119

to the area which hjis strength or a problem should mean that I give

feedback that is more specific than "labeling" comments such as

"ambiguous" or "vague."

In their responses to the request to "describe a typical [mar-

gin/interlinear] comment" that was part of question 12, the respon-

dents showed both a range of content that they address and a range in

techniques that they use in margin and interlinear comments.

The overwhelming majority of the respondents said that they use

margin and interlinear comments, as well as end comments, to discuss

the largest issues in the papers, including the analysis, logic, organiza-

tion, and persuasion. Mary Beth Beazley offered the following example

of a substantive margin comment: "Are you saying that no prisoner

can be a member of a suspect class? That if the prison chose to

discriminate against African-American prisoners, it would only need

to pass rational basis of the fact of incarceration?" She offered this

example of an organizational comment: "I thought you were done with

strict scrutiny. Why do you bring it up here?"

Margin and interlinear comments are also used extensively by the

respondents to comment on paragraph and sentence level problems.

Although there were two vocal minorities—one which advised against

editing and revising and another which advised against imposing one's

own style on students^-rnost said that they use margin and interlinear

comments on such issues as topic sentences, sentence structure,

transitions, passive voice, wordiness, and nominalizations.

While most of the experts said that they marked errors in

grammar, punctuation, spelling, mechanics, and citation, at least one

expert resisted, particularly the grammar corrections, saying he was not

teaching an English class for lawyers. Several cautioned novice legal

writing professors about making corrections unless they were sure they

were right.

"If you're not sure about a mechanical error, don't mark it. You

might get an English major coming up to your office to prove you

wrong and then you've lost credibility," cautioned Ruth Vance.

The most commonly recommended technique for margin and

interlinear comments was to pose questions.

Ross Nankivell offered

two examples of pointed questions regarding the quality of analysis:

"How would the defendant respond to your last argument?" and "Does

24.

In my earlier study, I noted that while framing comments as questions can be effective,

short or terse questions like "why?" "how?" and "are you sure?" can set off negative reactions in

some students who feel like they are being cross-examined rather than taught. Enquist,

supra

note

179-81.

1999] Law Students' Writing

1139

this conclusion logically follow from what

you

just said?" with

arrow

to the

flawed analysis.

Kathleen

McManus also recommended framing "correction

comments"

questions like

the

following: "Where

do you

apply

the

standard?"

and

"What facts might distinguish this case?"

While

the

experts acknowledged that

times they simply label

problem, several discussed

the

value

stopping occasionally

explain, illustrate,

suggest solutions.

a student has problems with

topic sentences,

for

example, several say that they would stop

and

write

in one topic sentence

for

the student

but

then expect

the

student

to use

the example

as a

basis

for

correcting

the

problem elsewhere

in the

paper.

Nancy Schultz said,

The trick

is to

offer

explanation

well

criticism, without

writing

epic novel between

the

typewritten lines

or in the

margins. Students want

and

deserve

know

why

something they

have written

incorrect, vague, unpersuasive

grammatically

improper. This does

not

mean that you need to go into great detail

every time you feel the urge to make a mark on the paper. This is

obviously impractical, if not physically impossible.

For sentence structure, grammar, punctuation,

and

citation

problems,

the

experts employ

a few

different methods. Some line-edit

to show

how

syntax, word order,

and

verbosity

can be

improved.

Others merely circle

the

problem, particularly

if it is a

grammar,

punctuation,

citation error,

and

then write

the

rule's page number

the

margin. When

the

same error appears numerous times

in the

same paper, some make

the

correction

the

first time

the

error appears

and then write

margin comment that tells

the

student that

the

error

appears repeatedly.

The

paper's author

then responsible

for

finding

and correcting

the

other instances.

few use

specific strategies like highlighting, numbering,

lettering keyed

to the

individual student's

end

comment

master

comment sheet

help

the

student

see the

pattern

their errors.

They then

use

macros"

make writing

the end

comment more

efficient.

25.

The

term "macro" refers

to a

word processing feature that allows

the

legal writing

professors

record some words, sentences,

paragraphs that they anticipate using many times

and then assign

a few

simple keystrokes

retrieve

and

insert those recorded words. Once

macro has been stored,

the

professor can add

it to

new documents without retyping

using

the

assigned keystrokes.

1140

Seattle University Law Review [Vol. 22:1119

"I highlight (with' different color highlighters) passive voice,

nominalizations, unnecessary words, etc.," wrote Bari Burke. In the

same vein Kathleen H. McManus wrote,

When circumstances warrant it, I will mark the student text with

numbers or letters and link these marks in an end comment. The

end comment will address a technique or quality that ripples

through the text: inconsistencies, unfulfilled promises, or common

patterns of errors. Use of the symbols and the end comment make

the evaluation more concrete.

Although all of the respondents use margin and interlinear

comments and think they are essential to a good critique, at least one

of the experts mentioned some of their potential drawbacks. Jane Kent

Gionfriddo believes that

[m]argin/interlinear comments do "fragment" the memo for the

student in that they tend to focus the student on individual

strengths and weaknesses. They do this both physically and

analytically. Writing in the margin may hinder the revision process

by being a kind of physical or psychological barrier to the student's

interaction with what he or she originally wrote. It's difficult to

work with a memo when all over every page the professor has

written multiple comments, crossed out ideas, and used arrows to

insert ideas.

In addition, margin/interlinear comments by their nature

fragment the memo by focusing students on individual aspects of

their analysis, organization or writing. Such comments bring up a

myriad of individual points, throughout the memo, that may never

coalesce into any kind of cohesive point of view on how to revise the

memo. Of course, this downside can be mitigated if such comments

point out repeating problems, and are in conjunction with end

comments that pull everything together.

Unlike end comments, then, which typically focus on the general

strengths and weaknesses of the paper, margin and interlinear

comments focus on specific spots in the writing that succeed or need

improvement- They allow the critiquer to pinpoint exactly where a

flaw appears—whether it be in research, analysis, or composition—and

then pose a question, offer an explanation, or suggest a remedy.

Although margin comments have the potential risk of fragmenting the

paper for the student, some margin commenting strategies like

highlighting and numbering can be used to help writers tie together

several margin comments so that they can see patterns of errors in their

writing. They, like end comments, can also be explicit links back to

1999]

Law Students' Writing 1141

the textbook, class discussion, or writing conference, which is the next

technique recommended by the experts.

6. Tying the Comments to the Text, Class, and Conferences

Many of the respondents to the questionnaire make explicit

connections between the comments they make on their students' papers

and their other primary teaching vehicles: the textbook for the course,

class discussion, and writing conferences.

One common technique for addressing certain problems is to send

students directly to specific pages in the textbook. "I noticed several

examples of X; review pp. xxx to learn about it" was an example of

such a comment offered by Mary Beth Beazley, who added that

many students think that no fixed rules exist for grammar or

punctuation—that everything is just 'personal style.' Citing to the

texts lets them see that you are not just arbitrarily deciding that

their writing is wrong, and also lets them look to those guidelines

when writing in the future.

Several of the experts write comments on their students' papers

that are short assignments that the student must complete before

coming in for a writing conference. For example, Mary Lawrence

might require a student to reorganize a paragraph, while Mary Beth

Beazley said she might require a student to do a case brief and bring

it to the conference.

Beazley also codes certain comments as TTMA ("Talk to me

about") comments. When a student sees TTMA before a comment

on the paper, that means that this is a point she wants to discuss with

the student in a conference.

Jan Levine was even more adamant about the importance of

connecting comments on papers with individual writing conferences.

"The crucial factor in the student's successful reception of the

comments (or understanding of what is behind the comments)," said

Levine, "is giving the student a chance to meet the teacher and speak

with him or her about the paper, the comments, or life in general."

The key point here is that comments are an integral part of the

whole teaching/learning experience. Using them as links between a

student's paper and all the other components of the course—textbook,

class discussions, individual conferences—helps students make

connections and see how to apply what they are learning in their own

writing. Making all these connections, identifying key writing

strengths, diagnosing and commenting on significant weaknesses, and

articulating all in well crafted margin, interlinear, and end comments

on many students' papers, however, seems at times to be an over-

1142

Seattle University Law Review [Vol. 22:1119

whelming, even superhuman task. Fortunately, the experts had a few

suggestions about how to make that task a bit more manageable.

Surviving the Critiquing/Grading Process

Seven of the first eleven questions on the questionnaire concerned

the number of students the experts have in a semester, the number of

papers they critique, and the amount of time they spend commenting

on and grading student papers. It will not surprise other legal writing

professors that these numbers are overwhelming. While a lucky few

have relatively small numbers of students (four had fifteen or fewer

students each semester), seven other respondents have sixty-five or

more students per semester.

The majority of the respon-

dents—twenty-six of thirty-five—read and comment on drafts as well

as finished papers. Although there were great differences in how much

time some said they spend on individual papers, a rough average for

the group is approximately 45 minutes to an hour per draft or finished

paper. Consequently, every respondent to the questionnaire spends a

substantial part of his or her time and energy commenting on and

grading student papers.

This last conclusion mirrors the experience of the vast majority of

legal writing professors in the country: virtually all spend enormous

amounts of time and energy critiquing and evaluating their students'

work. The question then is what have the experts learned about how

to survive this process and, based on their experience, what do they

recommend.

To deal with the sheer size of the task, Steve Johansen suggested

that novice teachers "plan ahead. It's always easier and more effective

to grade a few papers a day than to try to do them all at once."

To counteract the human tendency to procrastinate, Ross Nankivell

said,

Do it as soon as possible and as fast as possible. Feedback while

the research, analysis, and writing involved are all still fresh in the

student's mind is worth much more than a post mortem weeks later.

Give yourself a weekend from hell. Stay home, away from

colleagues as well as students, and have whole days or a whole week

26.

Four of the seven have teaching assistants or adjuncts helping with some of the

critiquing.

27.

One of the respondents noted that in a memo to her dean, she had figured out that, in

her program, a legal writing professor who has fifty students gives feedback on 4,000 pages per

year.

1999]

Law Students' Writing

1143

from hell, but turn those papers around fast. Also doing the papers

all together makes ranking and grading much easier.

K.K. DuVivier added that "[w]hen assigning grades

in a

curve,

becomes hard

remember over time

how one

paper differed from

another.

avoid this,

I try as

best

I can to

block

out

uninterrupted

periods

to get as

many done

at a

time without long hiatuses."

But, cautioned Helene Shapo, doing

too

many papers

once

can

lead

impatient critiquing. Diana Pratt agreed, "Don't

try to do too

many

once.

It is

hard

keep your cool when

the

fourth paper

row has

disorganized

the

discussion section."

Even though

it is an

enormously important

and

time-consuming

task, Nancy Jones advises legal writing professors

to set

some limits.

"It

can

take over your life

you don't

set

limits

the time

you

invest

in it.

"Watch

the

clock," added Jill Ramsfield. "Give each paper about

the same amount

time

and do not let the

mind wander."

Several other respondents offered strategies

for

maintaining

consistency

grading. Some suggested assigning tentative grades

the first reading, putting

the

papers

rank order, rereading,

and

then

adjusting grades

necessary. Others suggested either reading several

papers

to get a

sense

of the

group before starting

grade,

going

back over

the

first papers after grading

stack

make sure grading

standards

had not

changed

in the

process. Several recommended using

a grading checklist

ensure consistency.

Several experts made suggestions that

may

make

the

process more

efficient. For example,

number of them develop macros

for

common

mistakes

and key

them

to a

number

on the

paper.

A few use

"master

comment sheets," which they make

up for the

whole class after they

see what

the

common problems

are and

then attach

copy

of the

master comment sheet

each paper.

least

one is

experimenting

with having students hand

assignments

computer disk

and

then

drafting comments directly

on the

student's file.

Joan Blum advises

the novice teacher

"to

experiment

determine what mode

critique

the

most effective

for the

students

and the

least stressful

for the

professor."

few

experts suggested using shorthand systems

for

common

comments,

but

added that

it is

critical that

the

students have

list

these marks

and

abbreviations

that they

can

decipher

the

com-

ments.

Steve Johansen

has

gone

so far as to

develop "Johansen's

28.

my earlier study,

the

four students who critiqued legal witting professors' comments

on their papers were

not

overly enthusiastic about coded comments. Using

a 1-5

scale

being

1144 Seattle University Law Review [Vol. 22:1119

Dictionary of Legal Writing Comments," which is designed to ensure

that his students understand some of the most frequent comments he

writes on papers.

There were several strong admonitions not to use red ink when

writing on student papers. "I use green ink," said Richard Neumann.

"It's easy on the eye and carries no negative baggage."

Four different experts specifically recommended using pencil. "If

you are writing comments on the paper

itself,

use pencil so you can

change your mind," recommended Mary Beth Beazley.

"I always critique with a soft, #1, black lead pencil," added Ross

Nankivell. "I can (and very often do) erase a comment and either

rephrase it or write something different. Also, #1 lead pencil

comments are dark and photocopy well, in case I decide I want to

retain a copy."

Several also offered common sense advice, such as writing legibly,

and reminded novice teachers of important, overarching principles that

can be easily forgotten once the critiquing process begins. "Read like

a client/judge/associate, etc.," advised Paul Bateman. "Give a 'real

world' response to a document submitted to you." In a similar vein,

K.K. DuVivier recommended, "Work on getting an overall sense of

the piece to see whether it is getting the point across."

Others cautioned novice teachers to remember that their students

were novices too and that the comments should take that into

consideration- "Don't forget you are dealing with novices," reminded

Cathleen Wharton. "Legal writing and analysis are very difficult, so

don't expect perfection."

Because few legal writing students come to the course with

experience writing legal memoranda or briefs, Mary Lawrence

suggested that legal writing professors be explicit about how legal

writing differs from other writing: "Be sure students realize that

they're learning to write in a new genre."

Finally, the experts said that, in order to survive the critiquing and

evaluating process, legal writing professors had to remember that

writing comments on student papers allowed them to create a dialogue

with students about their writing and to personalize the teaching. Jill

Ramsneld, for example, acknowledged that commenting on and

grading student papers "is the most exhausting aspect of the job. But

I feel I am teaching, talking, chatting, discussing the paper. I try to

the highest) to rate each comment's usefulness, the students tended to rate coded comments as

a 4 or occasionally a 3. In a few instances, the students complained that they did not have the

key to the coded comments on their papers. Enquist, supra note 2, at 165-66, 177.

1999]

Law Students' Writing 1145

treat each set of comments like a personal letter. No two are alike.

That keeps me engaged."

Like most huge tasks, then, critiquing and grading requires

planning, time management, focus, a few time-saving tricks, common

sense, and the right perspective. It also helps to know where the

hidden traps and tripwires are, which is what the experts shared when

they addressed the question about the potential pitfalls in critiquing.

Potential Pitfalls

Marking Everything

Not surprisingly, responses to the question about potential pitfalls

about commenting on and grading students' papers were often the flip

side of the coin of an effective teaching technique. Marking every-

thing, commenting only on weaknesses, using problematic assignments,

and not developing teaching priorities were all pitfalls that had already

come up in responses to other questions. They were also mentioned

extensively in responses to question 22, "Are there particular pitfalls

about commenting on and grading student papers that you think

novice legal writing faculty should be made aware of? If so, please

describe." In addition to the "marking everything" error, the experts

identified two other potentially fatal errors that some novices make

when they first start writing comments on students' papers: not

considering the tone of the comments and using problematic assign-

ments.

Not Considering the Tone of Comments

Second on the experts' list of potential pitfalls were issues

concerning the tone of comments. Nine different respondents

specifically named making angry or sarcastic comments as a mistake in

critiquing papers. Others cautioned against humor that can be

mistaken as sarcasm.

"Don't give in to the impulse to write an angry or sarcastic

comment," advised Cathleen Wharton. "You will wish you hadn't

when you cool down."

"[Avoid] being mean-spirited, which can happen especially if [you]

let feelings about papers bleed together—reading the 15th paper that

makes the same mistake is not the same as seeing one person make the

same mistake 15 times (not that hostility would be warranted there,

either),"

warned Christy McCrary Nisbett.

While most acknowledged that they sometimes became frustrated

when reading a stack of papers, letting the frustration show through

1146 Seattle University Law Review [Vol. 22:1119

the comments was considered counter-productive. "Don't let your

frustration and fatigue show in your comments," advised Mary

Lawrence. To maintain some perspective, Laurel Oates suggested that

you "constantly remind yourself about how much your students have

already learned and not about the things that they still haven't

mastered."

"Just remember the students are trying," added Steve Johansen,

"even if it doesn't always show up in their work. Be patient and as

positive as possible."

Using Problematic Assignments

Poorly designed assignments were also frequently mentioned as

pitfalls or even fatal flaws in novices' teaching. Assignments could be

poorly designed in a variety of ways, but not understanding the

problem thoroughly before critiquing, not considering exactly how the

assignment fits with teaching objectives, and, especially, designing an

assignment that was too difficult for the students were all singled out

as pitfalls to avoid. "Do not set up a potential for failure that's

inherent in the assignment—e.g., giving an assignment that's too

complex for a novice writer to organize well," warned Mary Lawrence.

Jill Ramsfield added, "Poorly designed assignments undermine any

other goals. ..."

Some General Advice from the Experts

In addition to their advice about effective teaching techniques and

pitfalls to avoid, several experts made numerous individual points that

would be helpful to novices.

Laurel Oates, for example, identified two common problems for

novice teachers: lack of confidence and over-emphasizing problem-

specific issues. "Lack of confidence," said Oates, "can result in being

overly dogmatic or overly 'loose' or vague. In cases where new

teachers spot a problem but are unsure about the solution, I advise

them to use reader-based comments like 'I'm having trouble following

this argument.'"

Regarding overemphasis of problem-specific issues, Oates said,

"The longer I teach, the more I strive to write comments on student

papers that will affect the writing students will do five and ten years

from now. I want to use the comments to teach decision-making,

rather than just to show how to fix a particular problem on a particular

paper." Nancy L. Jones agreed and added that while our purpose in

commenting is to "help the writer be more effective and efficient in the

draft at hand," we are also trying to "serve the writer for the long

1999] Law Students' Writing 1147

term, in the ongoing process of becoming a powerful writer of legal

documents."

Teresa Godwin Phelps emphasized two different pitfalls to avoid:

(1) comments that reflect personal preferences rather than objective

criteria, and (2) comments that reveal that the professor has a fetish

about something.

If the commenting uses personal taste or other nonobjective criteria,

students justifiably think that good writing means figuring out what

the teacher wants. Certain things make clear prose (active voice,

subject-verb-direct object order, short-ish sentences). Teach and

expect these. But, don't fetishize anything. If a student writes a

clear long sentence, it's OK. If

student has a reason for using the

passive, it's OK—even if you would have done it differently.

In the same vein, Cathleen Wharton advised, "Evaluate what the

student wrote on its own merit. Don't compare with what you would

have written."

Still other experts offered different yet very practical suggestions.

For example, Jan Levine advised, "When papers are truly awful, stop!

Talk to the student before totally destroying the paper—get a redraft

or a retrospective outline." On the issue of returning papers, Kathryn

Mercer counseled, "Never promise papers will be returned before you

can realistically complete them." She added that it is wise to "make

sure your grading policy is clear and reiterate it throughout the

semester."

Jane Kent Gionfriddo shared still another important insight:

"Students must learn that revision is holistic. A sentence or paragraph

that works in a draft and is 'good' within that context may have to be

scrapped or reworked within the context of revising the overall analysis

and organization."

And finally, Sam Jacobson reminded us of the important difference

between giving students the answer and guiding them toward the

answer: "Don't give answers analytically or about research. Give

guidance so [the] student will know what to do to complete the

research or knows what to think about to cure the analytical problem."

The list of "don'ts" that the pitfalls question generated contains

relatively few, yet adamant, general recommendations about what not

to do: don't mark everything; don't allow comments to sound mean,

angry, or sarcastic; don't use a poorly designed assignment. The

companion question about which comments a legal writing professor

should avoid writing on a students' paper tended to generate examples

of more specific problem comments.

1148 Seattle University Law Review [Vol. 22:1119

C. Comments to Avoid

Sarcastic, Angry, and Overly Negative Comments

Closely related to the "pitfalls" question was question 17, "Is there

any type of comment that you particularly try to avoid writing on a

student's paper? If so, describe." Once again, the respondents

commented extensively on avoiding sarcastic, angry, rude, and overly

negative

comments. Several of them also advised phrasing the

comments so that they were about the writing, not the writer.

"I avoid preaching and confrontational or degrading com-

ments^—e.g., 'You should know better' or "This makes no sense'," said

K.K. DuVivier. "Typically I avoid the word 'you' whenever I can."

Rather than write "You should do this," DuVivier tries phrasing more

like "This might be clearer if we moved this word here."

"I avoid sarcasm, attacks on the student's effort (only rarely is this

appropriate) and anything that might be seen as an ad hominem

attack," added Steve Johansen. "I comment on the writing, not the

writer. If something is wrong, I try to ask a question that points the

student in the right direction rather than just pointing out the error."

"[Avoid] intemperate criticism, outbursts and exclamation marks,

or worse yet, multiple exclamation marks, question marks, and

underlining: Comments like 'Ye gods!' 'Dear me!' 'No!' 'What?'

'Eh?'.

. ." advised Ross Nankivell. Helene Shapo agreed that legal

writing professors should avoid brusque comments. She added that

"one or two word comments aren't usually too helpful and they come

across as rude."

Several of the experts cautioned against writing comments that were

more personal than professional. "I always try to remember that the

critique relates to the paper and not the student," commented Molly

Warner Lien.

Accordingly, I will write: "The organization of the section on what

constitutes extreme and outrageous conduct could be improved by

starting with the general definitions and then going to specific

illustrations." This is better than: "You failed to use an effective

organization in . . ." Based on comments from all our students, the

paper-oriented approach produces enthusiasm rather than defensiveness.

29.

Nancy Schultz added that it is possible to soften comments to the point that the

comments are not "a realistic appraisal of just how far [the students] had to go to improve their

writing." "[T]he trick," said Schultz, "is to try to find just the right balance for each student to

give him or her encouragement while being honest in your appraisal. I suspect that we cannot

hope to really do this effectively for each student—we just do the best we can."

1999]

Law Students' Writing 1149

Jane Kent Gionfriddo confessed,

I try not to phrase comments in a personal or offensive manner, for

instance, "give me a break" or "what the hell are you referring to

here,"

although I've certainly had that impulse. However, given my

knowledge of an individual student and my relationship with him or

her, I have made personal comments to make a point vividly—for

instance, "as your reader, I'm about to pull my hair out

here—there's been no topic/transition sentence fot several para-

graphs now, and I have no idea how this idea relates to this idea.

Do these cases relate? If

so,

how do they relate? Does Case X give

you any hint to this?"

Richard Neumann tries to avoid comments that refer to

himself.

An "I" comment, suggested Neumann, "creates unnecessary issues

about who gets to say what goes on here."

John Dernbach added that he avoids comments that "generalize in

a negative way about the students' abilities."

Rather than give in to the temptation to write sarcastic, angry, or

overly negative comments, Diana Pratt advised, "Show you take your

students seriously by the professional demeanor of the comments."

While it may seem obvious that legal writing professors should

control the tone of their comments and avoid angry or insulting

outbursts, it is far less obvious that other comments, some of which

may be common to critiquing all types of writing, are equally

unhelpful if they are ambiguous to students. What is most unfortu-

nate,

too, is that this next category of comments to avoid includes

some of the comments that writing teachers have often thought of as

handy shortcuts.

Ambiguous Comments or Marks

Even higher on the experts' list of comments to avoid than

sarcastic, angry, and overly negative comments were ambiguous

comments, either because they consisted of one-word labels such as

"awk," "unclear," or "vague," or because they consisted of stray marks,

underlining, or excessive abbreviations. Indeed, "awk" was mentioned

as a comment to avoid by no fewer than twelve experts.

"Avoid unhelpful comments such as 'awkward' or 'vague'—tell

students what concerns or confuses you," advised Nancy Schultz.

"Explain and don't use vague terms like 'tone,'" added Teresa Godwin

Phelps. "Do not scribble vague lines, marks, etc.," cautioned Pat

Hugg.

1150

Seattle University Law Review [Vol. 22:1119

"I try not to use a margin comment such as 'huh???' because the

student might not see what I don't understand. Instead, I try to

formulate a question or give a reader response," explained Ruth Vance.

Laurel Oates added that she tries to avoid comments that use terms

that have not been discussed in class (e.g., "dovetailing," "flow").

Kathleen H. McManus said she tries to be specific in her comments.

Rather than simply write "unclear," she recommended a comment

more like "unclear because of placement of modifier." Jane Kent

Gionfriddo also agreed, and although she conceded that, in the interest

of time, critiquers sometimes have to use labeling comments, "there is

a substantial difference between saying 'lack of precise connection' and

saying 'the word "and" in this sentence masks the much more precise

connection between 'this idea' and 'this idea.' Figure out what the

connection is and express it."

Making Assumptions About the Student's Effort

A significant number of respondents cautioned against making

comments that suggested that the student had not worked hard on the

assignment or put enough time into it. Many confessed that they had

mistakenly assumed a given paper was dashed off with little effort only

to find that a student had labored over it.

"I . . . never write 'It's obvious that you neglected this assignment

until the last minute and then put no time into it' because I DID write

that once and nearly destroyed a student," wrote Mary Beth Beazley.

It turned out that she had worked her tail off on it and was horribly

hurt that I thought it looked like she hadn't. When faced with the

same type of paper, I say, "it looks as though you did not have the

time to devote to this assignment. If you DID devote a lot of time

to it, let's talk about how to get more out of that time." It's not

much more redeeming, but it does at least admit that the student

might have worked hard.

"Assume good faith," advised Pat Hugg.

Taken together, the recommendations from the experts about

teaching techniques, the warnings about pitfalls, and the advice about

comments to avoid all contribute to a methodology of critiquing papers

that is pedagogically sound, student-centered, and practical. The

techniques derive their strength from a basic understanding of how

people learn and how best to maximize that learning. Remembering

to stay focused on one's teaching priorities and limiting the number of

comments, for example, are excellent safeguards against common errors

made by well-intentioned, novice teachers. A critiquing approach that

emphasizes giving positive feedback and avoiding overly negative

1999]

Law Students' Writing 1151

comments creates a law school learning environment that is both

rigorous and respectful of students. Even the practical strategies for

surviving the critiquing/grading process were inevitably tied not just

to how to get the critiquing done, but how to do it in ways that were

fair, humane, and effective at achieving educational goals. In short, the

389+ years of experience shines through the experts' collective wisdom

and advice. However, two questions remain: (1) how did the experts

learn how to comment on and evaluate student writing, and (2) do they

always agree?

IV. TRAINING LEGAL WRITING PROFESSORS TO COMMENT ON

AND EVALUATE STUDENT WRITING

When asked how they developed their style and ability to comment

on and grade student papers, the thirty-five experts gave candid

responses, but several asked that these responses be kept anonymous.

Consequently, in fairness to all who responded to the questionnaire, no

further attributions will be given in this or the subsequent section.

The most common answers to the question about how they learned

to critique were "trial and error," "practice," and "experience." In

other words, seventeen of the thirty-five respondents, or almost half of

the group, listed some form of "just doing it" to describe how they

developed their ability to critique student papers. "I've just learned by

'hit or miss,' and doing what comes natural." "Through trial and error

and many years without many mentors or assistance." "Lots of

experience." "Practice, practice, practice."

Slightly more than one-third of the group, twelve respondents,

listed student feedback as important in developing their style and

ability to comment on and grade papers. "In the beginning I wrote

what I felt comfortable writing, noticed what had a bad effect, noticed

what was meaningful. The evolution [of my style and ability to

comment on and grade papers] was shaped by testing informally how

students reacted to what I was saying. ..."

One expert wrote, "I keep working and see how students respond.

I realize a comment hasn't worked if in conference the student needs

clarification or takes it the wrong way." Another expert commented,

"I make mental lists of comments that have worked in the past (ones

which elicited the desired response in subsequent papers)."

Only nine of the thirty-four said they developed their critiquing

ability, at least in part, by attending national conferences and seminars

where commenting on and evaluating student papers were discussed.

Six said that they have done some reading about the topic; six said

they have benefited from conversations with colleagues about it.

1152 Seattle University Law Review [Vol. 22:1119

Those who mentioned reading about critiquing listed composition

theory, reader response theory, and writing process literature as

important to their growth as critiquers of student writing. Specifically

named by a few of the experts were Nancy Sommer's article, "Re-

sponding to Student Writing," and Joe Williams's work on composi-

tion theory.

Three respondents named the English Advisor or Writing

Specialist at their school as being significant in their development as

critiquers. Three others said that they thought critiquing through on

their own and had tried to consider what they themselves would find

helpful in comments. Three listed reading other people's comments

as helpful; three developed their critiquing ability by teaching English

at another level; and only two learned about commenting on and

grading papers at workshops at their own institutions. The question,

then, is whether things have changed.

Most of the experts who were selected for the questionnaire began

critiquing papers ten or more years ago, at a time when legal writing

was just beginning to get a serious foothold in the law school curricu-

lum. Now that teaching legal writing is more established as a

profession,

the question is whether we are now able to professional-

ize the way we are preparing newcomers to the field. How are new

legal writing faculty learning to comment on and evaluate student

writing? Are they, like their predecessors, learning informally by trial

and error, practice, and student feedback?

Question 20 on the questionnaire addressed the issue of training as

it relates to commenting on and evaluating student papers: "Does the

legal writing program at your institution have any method by which it

attempts to prepare the legal writing faculty to comment on and

evaluate papers? If so, please describe. (Please include whether this

is a one-time preparation or whether there is ongoing training in

critiquing student work.)"

Of the thirty-four schools

' represented in the responses, seven

said there was no method used at their school for preparing legal

writing faculty to critique papers.

Three additional schools reported

30 According to a recent survey oflegal writing programs in American law schools, all law

schools now have legal research and writing courses J Ramsfield, Legal Writing in the 21st

Century A Sharper

Image,

2 LEGAL WRITING 3 (1996).

31 Two respondents from the thirty-five were from Boston College School of

Law,

so only

thirty-four different law schools were represented

32 While three respondents simply answered the question "no," four other respondents

qualified their answer by saying "no formal method" or by describing methods used in the past,

but no longer part of their program.

1999] Law Students' Writing 1153

that although they have done training in the past, currently no method

is used for training on critiquing. In each of these three schools, the

respondents said that all of their legal writing professors were

experienced faculty now, so there was less of a need for training. Two

of the three expressed both a regret that they had not continued the

training and a desire to reinstitute some form of training in critiquing.

In the "early years" we used to get together and grade/evaluate

papers as a team in an effort to learn from one another and to

"norm" the grading. It would probably be a good idea for us to do

it again because I'm sure we've changed a lot and I'd be interested

in how the others would view my evaluation of papers now.

The remaining twenty-four schools employed a variety of methods,

including formal and informal discussions about critiquing, reviewing

and, in some cases, distributing sample critiqued papers, readings

about critiquing, and relying on English Advisors or Writing Special-

ists to train legal writing faculty to critique. Some had one-time

training sessions; others had ongoing training programs. Some held

formal sessions, and others relied on an informal sharing of techniques,

philosophy, and expertise.

Three of the twenty-four schools described a "very informal"

training process that consisted almost entirely of office, hallway, and

telephone conversations among their legal writing professors. At least

one of these three schools felt that using an informal approach had

been very successful.

Many of us . . . have been teaching together ... for long periods of

time. . . . [T]hus, through the years, our "training" has been

accomplished much more through the collaborative process of

translating our experience into a collective culture of the program

than through some kind of formal program or series of discussions.

As we have developed our curriculum over the years, we have had

to communicate both formally and informally on many issues,

including giving feedback on memos. I believe that this collabora-

tive process best teaches all faculty members, including new ones.

New faculty members must internalize and believe in the goals of

the program, before they will be able to "reflect back" those goals

in their written (or oral) feedback on memo assignments. Thus, I

have tended to trust in the individual development of each faculty

member over time, since in this way that member will contribute his

or her own unique ideas to the curriculum and the development of

all members of the faculty. Of course, it is good to give a new

faculty member a basic sense of what is expected so that they and

the students don't suffer too much as the faculty member learns

how to teach. . . .

1154 Seattle University Law Review [Vol. 22:1119

Of the twenty-one schools who had "formal" training programs,

ten offer one-time training at the beginning of the school year, during

the summer, or only when new legal writing faculty are hired. In one

case,

the "one-time session" is an intensive three-day workshop for

student critiquers, and in a second case the one-time session is

conducted by the legal writing faculty for student TAs. A third school

conducts a one-time training seminar for all adjunct writing instructors.

A fourth school's training consists of readings given to adjuncts and a

one-time orientation meeting, and a fifth school trains its adjuncts by

circulating the director's three and one-half page memo on critiquing.

Two other schools have one-time meetings between the director and

the new person hired. The remaining three have a one-time meeting

or workshop on critiquing for the legal writing faculty.

The eleven schools that offer ongoing training in critiquing do so

in one or more of three different ways: they hold regular meetings at

which commenting on and grading papers is a regular topic of

discussion; the director collects and circulates samples of critiqued

papers; and/or the director meets with individual faculty members and

reviews a sampling of their critiqued papers.

The schools with the most extensive training programs tended to

use a combination of methods, including an orientation at the time new

instructors were hired, evaluation criteria for the program, a library of

materials on critiquing, and meetings throughout the school year for

discussing critiquing as it relates to each new assignment.

We have ongoing training throughout the year. We give instructor

applicants a memo to critique—that memo is used as part of the

training process. Before the semester starts, we have a general

meeting which includes training in commenting and evaluating

papers. If I have a substantial number of new instructors, we will

have a separate training meeting for them. Instructors are given

specific evaluation criteria. Training includes both written materials

as well as opportunities for instructors to discuss and explain their

evaluation process. We have meetings throughout the year to

discuss critiquing student work.

First, we meet to evaluate the memo assignments before they're

given to the students—by evaluate, I mean criticize each assignment

ruthlessly for what students will learn from it (not subject matter;

research strategy; analysis strategy; organization). We discard

assignments if they don't meet the criteria we've established for the

processes the students must use. Second, we make a detailed

analysis outline for use in evaluating papers for each problem before

the assignment is distributed. Third, we meet to evaluate student

writing both before school starts and during the semester. We

1999]

Law Students' Writing

1155

discuss the kinds of comments we'd make on student papers. We

discuss the types of follow-up revisions and editing students could

profitably accomplish on the basis of written comments. These

sessions are run as workshops for the teachers.

Whether done formally or informally, most respondents reported

that discussions about critiquing are a regular part of their "training."

The second most common method is reviewing, and in some cases

sharing, critiqued writing samples. Although one respondent

acknowledged that "it is quite a threatening experience to discuss each

other's feedback," others emphasized its value. One expert explained,

"The best training is probably where someone critiques your critique.

'Why did you say this?' 'Did you think about this?' 'Did you notice

X?'

'Why didn't you comment on it?'"

Only three schools mentioned that they have tried norming

sessions, or grading tables, to determine if the legal writing professors

in their program are commenting and grading consistently among

themselves. The expert at one school, which has used grading tables

in the past, reported mixed, if not poor, results.

We have tried using a grading table format, which has not worked

very well, perhaps for the following reasons: (1) at a time when

everyone is pressed for time, the instructors resent having to grade

a paper for a grading table; (2) "old hands" competing with each

other to the detriment of the grading table; (3) instructors who are

unprepared; (4) not good direction on my [the director's] part.

A few schools reported a recent change in the training they are

offering their legal writing faculty. One is even planning a CLE for

its adjuncts that will focus on techniques for correcting papers ajid

commenting. Another noted,

We are all co-equals, and we have not done as much training as we

should. Recently, we have started to change that. (1) From time

to time, we give each other a copy of a paper we have marked. (2)

We have started to hold meetings at which we go over something

that we have all critiqued beforehand. ... (3) We plan to hold a

series of meetings at which one of us "lectures" the others on a

subject. . . .

Experts from other schools indicated that their institutions were

making plans to develop more of a training program. One expert who

is a Director of Legal Writing said, "Next year I will ask each of the

new instructors for a copy of a student paper with their comments (in

October)." Another director added, "We have future plans ... to

have our writing specialist conduct workshops with us."

1156

Seattle University Law Review [Vol. 22:1119

The honest answer, then, to the question about whether we have

professionalized our training of new legal writing faculty now that legal

writing is a more established feature in the curriculum is both yes and

no.

While it is disconcerting to learn that seven of the thirty-four

schools do not specifically attempt to prepare their legal writing faculty

to comment on and evaluate papers and three others have discontinued

their training efforts, the other twenty-four that do some training on

critiquing seem to be getting reasonably satisfactory results. Unfortu-

nately, though, only a handful seem completely satisfied with the

training they are offering on critiquing, and a significant number of

schools seem to feel that their school needs to continue improving this

aspect of their legal writing faculty's professional growth.

V. DIFFERENCES OF OPINION AMONG THE RESPONDENTS

Despite the strong consensus on many points from the experts who

responded to the questionnaire, two issues drew markedly different

opinions: (1) whether or not it was appropriate to comment on writing

style;

and (2) whether or not it was appropriate to revise or edit a

student's writing as part of the critique.

The two issues are related in that they both depend on the answers

to some underlying questions: What is the legal writing professor's

role when critiquing and commenting on student writing, and does that

role include being a teacher of writing (as well as a teacher of legal

research and legal analysis)? If so, should a teacher of writing address

what are arguably some of the more subjective facets of writing, aspects

of the student's writing style? Further, if legal writing professors are

teachers of writing, is revising or editing a student's prose an effective

or just a time-consuming and possibly even harmful teaching tech-

nique?

While the majority, but not all, of the experts seemed to consider

themselves teachers of writing, they had differing views about what

that meant. A few felt they should comment only on writing problems

that were clear cut errors, such as punctuation and grammar errors

(e.g., comma splices, subject-verb agreement, and parallelism). Others

felt that they should also comment on writing problems that extended

beyond grammar and into style (e.g., vagueness, verbosity, passive

voice, sentence length) when there was a clear consensus in the

33.

As in the previous section, I have elected not to attribute the responses in this section.

belief is that legal writing professors, including those participating in this survey, are more

likely

to explore these questions constructively if they do not feel that they or others have already

been

identified with a certain position.

1999] Law Students' Writing

1157

profession about what is and is not a more effective style. Still, others

felt comfortable making recommendations about almost any stylistic

issue that, in their opinion, affected overall readability (e.g., adding

transitions, changing sentence structure, varying sentence openers),

although it was less clear whether the comments were just

that—recommendations—and nothing more, and whether the students

felt that conforming to these style recommendations affected the

paper's grade.

A fair number of the respondents expressed the concern that

comments about a student's writing style were often inappropriate

impositions of the critiquer's stylistic preferences. For example, when

responding to the question about what type of comments to avoid

writing on a student's paper, one expert said, "Anything specific to my

style.

[I] comment as much as possible on analysis, organization,

research, etc. and less on style (otherwise my students come to believe

that I am trying to 'impose my style' on them)." An equal number of

respondents, on the other hand, said that they did comment on writing

style and considered it within the legal writing professor's purview for

critique. Indeed, numerous experts listed writing style as one of the

categories they comment on in the end comment.

Who is right? Before we can address that question,

and

certainly before we give advice to novice legal writing professors about

whether or not to comment on a student's writing style, we need to

begin with a definition of "writing style." Is style limited to the range

of grammatically correct options a writer has at the sentence level for

expressing his or her ideas? Does style extend beyond the sentence

level to small scale organization, as some of the experts suggested?

Does style include or exclude grammar and punctuation?

Assuming that we can agree on a common definition, perhaps

drawing a line between grammar and punctuation errors on the one

hand and stylistic options on the other, we then need to refine our

thinking about which stylistic options are simply individual preferences

and which represent the discourse community's consensus about

readability and effectiveness. While there seems to be a consensus

about a few stylistic issues, such as precision and conciseness, there is

less agreement (or maybe just less reliable information) about a host of

other stylistic choices, such as whether to open most sentences with the

subject and verb or whether to vary sentence openers; whether

34.

This Article attempts to address that question only insofar as it reports what the

respondents to the questionnaire said. The author hopes that further research will explore the

question fully.

1158 Seattle University Law Review [Vol. 22:1119

interrupting phrases create variety and emphasis or whether they break

up the flow; and whether short sentences are crisp and reader-friendly

or whether they create a choppy style, to name but a few. In short, if

we see our teacher-of-writing role as being one who guides students

toward stylistic choices that will be viewed by other members of the

discourse community as effective writing, then we need to do two

things: (1) distinguish between our own individual preferences and

those of the discourse community; and (2) clarify, where we can,

exactly what is the consensus within that discourse community.

Although the experts responding to the questionnaire were divided

on this issue, and it is certainly one that we will need to explore

further, one expert offered what seems to represent the compromise

position that might serve us well in the meantime:

If your students use an ineffective, but grammatically correct, style,

you may want to cite to [the pages in the textbook] and give your

students advice on improving their style. (I don't think I'd do this

for students who have significant substantive or mechanical

problems.) Make sure, however, that you don't impose your

personal style on the students. If you think you have an effective

style and you want to share your ideas, that's fine; just make sure

the students know that they can still be "correct" if they do things

another way.

Th$ second issue, whether revising and editing were effective

commenting techniques, revealed even greater differences of opinion

among the expert respondents to the questionnaire. Three "camps"

emerged—those who believed revising and editing were effective

teaching because the students learned by modeling the revised and

edited writing; those who believed revising and editing could be

effective if used in a very limited way; and those who believed that

revising and editing comments did the students' work for them and

probably interfered with the students' learning and sense of ownership

over their own writing.

Camp One—Revise and Edit

A significant number of the respondents strongly recommended

writing comments that revised and edited the students' writing. Their

35.

} want to emphasize that the questionnaire never explicitly asked the expert respondents

where they stood on the issue of revising and editing and certainly never asked individuals to

declare themselves adherents to one of these three positions. The diree "camps" are my

summation of the responses the experts made to many questions that elicited comments about

revising and editing.

1999] law Students' Writing 1159

answers to many questions indicated that revising and editing were

commenting techniques that they used extensively.

"I line edit and reorganize their papers, particularly drafts," said

one expert who was representative of this first group. "Show actual

edits,"

recommended another. "I might offer an alternative sentence

structure to help the student identify a grammatical or stylistic problem

in the original," added a third. "[I do] line editing to show how

syntax, word order, verbosity, etc. can be corrected, curbed, etc.," said

a fourth.

Inherent in each of these separate comments is the belief that

students learn revising and editing when they see their own ideas in a

revised or edited form. Although none of the comments suggests that

the legal writing professor add in a margin note that indicates how he

or she went about revising or editing a given section or why the new

version is better, the belief in this technique seems to include the

notion that if students see the end result, they can guess the how and

why.

Also inherent in these comments is the belief that just labeling a

problem is not good teaching; one needs to demonstrate how the

problem can be corrected. One respondent explained as follows: "I

don't often write 'wordy.' I try to line something out or edit it down.

If the writing is wordy, then you need to prove it through a few

examples. Then you can note it in the end comments." This

respondent gave the following as an example of an edit he would make:

"Prior to commencement of the trial proceedings-> Before the trial

began . . ." He added that "you can only do so much of

this,

[but you

should do] enough to provide examples."

Another expert who uses rewriting and editing added the following

comment about the most obvious danger in this teaching technique:

"I have to be very careful with my commenting to be sure that

students learn from the comments and do not just view them as an edit

to be corrected without thought."

Camp Two—Limited Revising and Editing

The most commonly held position among the respondents was that

limited revising and editing was the best approach to take. This

approach seemed to be driven by the belief that if a student sees

something demonstrated once or twice, he or she should then be able

to use that example as a model and apply it elsewhere. This approach

also seemed to address the dual concern of keeping the critiquing task

manageable and keeping the student responsible for his or her own

writing. One expert who subscribed to the limited revising and editing

1160 Seattle University Law Review [Vol. 22:1119

view said, "I let my students know that I stop marking spelling, cite

form, punctuation and such after two pages. After that, they need to

edit themselves."

Another said,

When I have a paper that contains consistently poorly written

sentences or sentences that are much too long, I will sometimes pick

out a few sentences as examples and rewrite them just so they get

a concrete example or two of how to improve in areas where they

are making the greatest number of errors. For the rest of the

sentences that contain the same types of errors, I use a shorthand

system of margin notes. I also try to avoid making "corrections"

except as an example when the student has made a true error (e.g.,

punctuation or grammar error). I want the student to think about

what works and why rather than merely making changes I've

suggested.

To ensure that students are able to learn from the limited revising

and editing done on their papers, at least one of the experts requires

that students do similar rewriting based on that model and either turn

the rewriting in or bring it to a conference. "Sometimes I will do some

rewriting to illustrate how a problem that recurs frequently in a paper

can be corrected. I will then ask the student to rewrite other parts of

the paper where the problem recurs. The student will generally be

required to hand in those rewritten sections at a conference."

Even those who use limited rewriting and editing have some

ambivalence about it as a teaching method, however, as the following

comment demonstrates: "I confess to sometimes engaging in editing

and even rewriting where necessary to demonstrate how a specific

problem can be remedied" (emphasis added).

Ambivalence about this method was also revealed by the seemingly

contradictory answers some experts gave to different questions on the

questionnaire. For example, one expert said, "I rewrite portions to

make the explanation clearer," in response to one question but later in

response to a different question said, "Avoid editing the students'

work; try instead to make comments that will lead the students to see

why a change is helpful and how to make changes themselves." Yet

another expert answered one question as follows: "With gram-

mar/style notations I try to only give examples (e.g., if wordy writing,

I might edit one paragraph as an example)." The same expert wrote

the following, seemingly contradictory, answer to another question:

"Don't edit a student's paper. The student ultimately needs to be able

to see the problems himself or

herself,

or the student won't be able to

do the work well the next time around. Guidance is great; doing the

1999] Law Students' Writing 1161

student's work is not." These apparent contradictions may indicate

that even the experts are having difficulty resolving for themselves

whether they would really recommend an absolute ban on revising and

editing comments or whether they would recommend deliberate, strict

limits on its use-

In a similar vein, a fair number of the experts said that they did far

more editing of student papers in their early years and that they have

had to learn how to comment in other ways. For example, when

answering the question about how her commenting on student papers

has changed over the years, one expert said that she now does "less

editing. Less telling the student how the paper should have been

written." Now she uses "sample passages to illustrate how a paper

needs editing."

C. Camp Three—Don't Revise and Edit

A rather vocal minority did appear to recommend an absolute ban

on revising and editing, even parts of student papers, as a teaching or

commenting technique. Some felt that this practice shifted too much

of the responsibility onto the professor and had the critiquer doing the

writer's work. As one expert said, "I try not to rewrite. Rather, I

label the problem. They [the students] have a reference sheet to the

Bluebook and [to the textbook]."

Two other experts felt that the technique should not be used

because it was an obstacle to the students thinking through the

problem on their own. One said, "I try to avoid rewriting because I

don't think it teaches anything." The second one was even more

direct-. "Don't edit—It's extremely time consuming and not very

helpful or effective."

Only a few of the experts who were opposed to revising and editing

comments offered suggestions about what to do instead. One felt

questions such as the following could lead students to make effective

editing decisions: "Is a nominalized verb hiding in this sentence?" A

very few felt identifying or labeling the problem was enough in

itself,

and that it was up to the student to figure out how to correct it.

We should not, in my opinion, be editing our students' work, but

rather identifying the flaws, so the student learns what (s)he did

wrong, leaving it to the student to do the rewriting. In the law firm

setting one edits what an associate has written. There, the principal

goal is a usable document, and the education of the associate is

incidental and secondary. Also, a law-firm associate's work is more

likely to be capable of being made usable by mere editing than is the

work of

first-year law student. Very often with student work, one

1162

Seattle University Law Review [Vol. 22:1119

can identify flaws, but what is needed is not merely editing, but

rewriting, and perhaps rethinking.

The consensus among this group of experts was that rewriting and

editing were time consuming but otherwise easy to do. Indeed, they

seemed to suggest that because revising and editing are easy to do, they

are traps that legal writing professors fall into. They felt that

expecting students to find their own solutions and not just imitate the

teacher's rewrites was the best solution. As one respondent put it,

"Teach them to become editors of their own work, not your pup-

pets."

VI.

NEEDED RESEARCH ON CRITIQUING

LAW

STUDENTS' WRITING

Based on the information gleaned from these thirty-five experts, we

need additional research on at least four issues related to critiquing law

students' writing: (1) What is an appropriate number of comments for

a legal writing professor to make on a law student's paper? Does that

number vary from student to student? Is there a range for the number

of comments that we can recommend to novice legal writing profes-

sors? When do students reach the saturation point?; (2) Given the

resounding endorsement by the experts for writing end comments, are

there more effective and less effective approaches to writing end

comments?; (3) Should we comment on writing style? As a group, how

do we define writing style? Within the discourse community, is there

a consensus about what is an effective writing style?; and (4) Is it

effective commenting and critiquing when the legal writing professor

actually revises or edits parts of the student's paper? If

so,

how much

revising and editing is effective teaching? If not, how else can we teach

students to revise and edit?

VII. CONCLUSION

The collected wisdom of these thirty-five experts gives new legal

writing faculty a chance to begin the important task of commenting on

and critiquing law students' writing with a reliable compass. They

should feel confident that they can rely on these suggestions as not just

one person's idiosyncratic approach, but rather as the emerging

36.

Interestingly,

the four students in my earlier study on critiquing

gave

relatively

positive

ratings

(3s and occasionally 2s on a scale of 1-5 with 1 being the highest) to comments that

showed

how to revise or edit their

writing.

Enquist, supra note 2, at 178.

1999] Law Students' Writing

1163

consensus of some of the more experienced and respected legal writing

professors in the country. Their advice, in a nutshell, is as follows:

Commenting on and grading law students' writing is one of, if

not the, most important task of a legal writing professor. As

such, it deserves time and attention.

Consider using these effective teaching strategies:

a. limit the number of comments;

give students positive feedback;

c. develop teaching and critiquing priorities;

d. write end comments;

e. write margin and interlinear comments;

f. tie the comments to the text, class, and writing conferenc-

es;

and

g. think through how to survive the critiquing/grading

process.

Beware these potential pitfalls:

a. marking everything;

not considering the tone of comments; and

c. using problematic assignments.

Avoid the following types of comments on students' papers:

a. sarcastic, angry, and overly negative comments;

ambiguous comments or marks; and

c. assumptions about the student's effort.

In addition to providing a compass for new legal writing professors,

the thirty-five experts have also provided all legal writing professionals

with an opportunity to consider how far we have come in developing

our collective ability to comment on and critique student writing. The

next question is, of course, how much further should we try to go. Do

we want to continue refining our collective knowledge about critiquing

and commenting on law students' writing, or do we consider critiquing

"style"

in somewhat the same way some talk about writing style, as a

matter of personal preference? This question, like so many others in

academia, sits between the rock of individual academic freedom and the

hard place of working together as a group of professionals. It will be

interesting as legal writing becomes more and more established as a

reputable part of the law school curriculum to see which way the

experts in our field lead us.