Academic journal article St. Thomas Law Review

Making Effective Use of Practitioners' Briefs in the Law School Curriculum

Academic journal article St. Thomas Law Review

Making Effective Use of Practitioners' Briefs in the Law School Curriculum

Article excerpt

  I. Introduction

 II. The Pedagogy Supporting the Use of Practitioners' Briefs to Teach
     Persuasive Writing

III. The Process of Using Practitioners' Briefs to Teach Persuasive
     Writing

IV. Going Beyond the Legal Writing Classroom: Using Practitioners'
    Briefs to Teach Analysis in Casebook Classes

 V. Conclusion

I. INTRODUCTION

Many law students attend school for three years and go on to graduate, pass the bar exam, and begin practicing law without ever reading court documents produced by practicing attorneys. (2) This happens because although law schools teach students how to write many of the documents that are produced for court, rarely do professors use these documents (3) in the classroom to teach. (4) Instead, professors assign edited case opinions in text books for law students to read. (5)

Case opinions are useful to teach students the law. They are, however, just end products, and consequently, show students only how a case concluded, not how it began or how it was argued or how it progressed through the legal system. (6) This lack of exposure to legal arguments can leave students with an incomplete understanding of the legal process.

Providing students with practitioners' briefs filed in cases they are studying enhances students' learning by exposing them to more legal methods and practice. Although practitioners' briefs could be introduced effectively throughout most of the law school curriculum, one course that would greatly benefit from their use is Legal Writing and Research. Most practicing lawyers depend heavily on their persuasive writing skills. (7) Consequently, most legal writing professors spend a great deal of time, often an entire semester, teaching law students how to write the basic types of persuasive documents that attorneys routinely file in court. (8) Professors do not, however, traditionally ever show students actual briefs that have been used in court. (9) The use of practitioners' briefs by law students is seen as harmful for many reasons. The pedagogical reason for making such briefs taboo arises from the fear that if students refer to these documents, they may not develop the ability to think and write independently. If the brief is well-reasoned and well-crafted, students will not have the opportunity to work through an analysis of the issues independently. On the other hand, if it is not well-reasoned or well-written, reading it is likely to hinder students in their efforts to analyze the legal issues presented.

The current state of technology, however, makes practitioners' briefs increasingly accessible to students. (10) Law school students today are quite adept at using the resources of the internet. (11) In addition, they now routinely have free access to the major electronic legal research services, Westlaw and LexisNexis. (12) Many courts nowadays also provide flee access to documents filed with them. (13) Expecting today's law students not to review practitioners' briefs when these forbidden materials are both so readily available and so obviously relevant to their assigned task, is becoming increasingly unrealistic.

Banning their use may also be disadvantageous to students. (14) An important skill possessed by all attorneys with strong research skills is the ability to locate the information most relevant to their assigned task and to know how to make use of it. (15) Pretending that practitioners' briefs addressing the issues assigned to students for analysis do not exist, or that they are not useful, does a disservice both to law students and to their future clients. The truth is that practitioners' briefs can be very helpful in learning the practice of law and attorneys in the practice of law often refer to them. (16) Practitioners' briefs can provide an understanding of how courts view certain arguments and thus provide insight into which arguments can work and which ones will probably not. …

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