SOME TIPS ON WRITING LAW ASSIGNMENTS What are the objectives of the Law assignment? • How is it assessed? • What are common student problems? • What do I need to read? • What are the differences between legal writing and other kinds of writing? • What are the best ways of using sources? • What are the features of legal argument? • How do I think critically in Law? • How should I discuss policy in legal essays? • How can I be “original” and avoid plagiarism? • What general advice would you give to students? A: Students need to demonstrate the following: o legal research skills o legal writing skills o skills in critical legal analysis o familiarity with style conventions o ability to use research tools The aim of this assignment is to provide an opportunity for students to put the legal research skills into practice that were learned in Legal Methods. This includes acquiring some familiarity with of a range of research tools and with primary and secondary legal materials, such as case reports, statutes, and law journal articles. Students need to: • Put into practice the legal writing skills which are formally taught as a part of the Legal Methods course. • Begin to put into practice skills of critical legal analysis (i.e. the ability to critique as well as describe the relevant law). • Gain an insight into some specific area of law that raises important theoretical, policy, or other analytical issues. • Acquaint themselves with some of the key requirements of formal legal writing. 2. How is it assessed? A: Students are assessed on the following: o level of research o level of critical analysis and argument o writing skills Assessment is generally via: • The level of research demonstrated. (i.e., Has the student accurately identified the key laws and demonstrated a reasonable breadth of research?) • The level of analysis demonstrated. (i.e., Is there more than mere description of the law or arguments that have been raised by others in relation to policy issues?) • The level of argument demonstrated (i.ea willingness to defend their own view, etc?) • The writing skills demonstrated (spelling, grammar compliance with style, and clarity of expression). 3. What are common student problems? A: The most common difficulties are associated with the following: o understanding qualities of a good essay o understanding how best to research and prepare for the essay The main difficulties include: • A lack of understanding of what is required. (This is explained at length in class, and students are urged to look at the Monash Law Review for examples of good legal writing.) • A lack of understanding of the amount of time required for initial preparation and research, and final checking of the assignment. • General problems with expression (e.g. the conciseness and precision required for good legal writing). • Specific problems with the writing style required for formal legal writing. (e.g., Some tend to be too informal and others may have a rather stilted or archaic style.) • Problems in understanding what is required in terms of originality. (This can be a problem for some international students.) • A lack of understanding of the need to refer to primary legal sources for legal propositions. A tendency to over-generalise. For example, students might look at what happened in one specific case and automatically assume that the result will be the same in all other cases, without explaining the basis for that generalisation. Lack of familiarity with the issues. Some students may not be very familiar with the euthanasia debate (e.g. international students from countries where this has not been an issue of public debate). But by reading, they would see arguments that discuss the slippery slope in euthanasia, or personal autonomy. Some international students handle the relevant issues very well, even though they may give them a rather different perspective (e.g. attaching less weight to personal autonomy than an Australian student). We hope that as students go through law school they won’t simply learn what the law is, but they will be able to participate in law reform. They will actually be able to see how the law operates, explore what it is trying to achieve and how well it is achieving it – and so critically evaluate it. Some students find it hard to recognise the difference between a High Distinction and a Distinction or Credit. The problem is that most of them are doing a reasonably good job anyway. But to get higher marks, a student has to do an exceptionally good job. Sometimes the reasoning is not of a very penetrating quality: it is very much only a scratching of the surface. A student might only point out that there are these arguments for and against, and state which one they favour, but they do not really develop and argue their case. There isn’t any attempt to grapple with counter-arguments. Another problem is a tendency to gloss over arguments and come up with simplistic statements such as “euthanasia is bad because it involves killing people”! It is very important to engage with the issues and the arguments presented for or against. 4. What do I need to read A: Use a range of secondary sources to identify relevant primary sources. Students are often unsure how much reading they need to do, and the type of texts they should be reading. In this first-year assignment, reading is obviously very important. The information students need cannot be obtained from the lectures or class notes. Generally students would be expected to locate a range of secondary sources (e.g. a minimum of six texts) and then to follow up by actually finding, and referring to, the relevant primary materials (i.e. statutes and/or law cases). 5. What are the differences between legal writing and other kinds of writing? A: Legal writing needs to be particularly: o clear o precise o well structured Legal writing is distinguished by a number of features. It should be as clear and concise and as precise as possible. Good legal writing is reasonably formal but not archaic. For example, it is not acceptable to use contractions such as “won’t” or “isn’t” or to write in a chatty style. But at the same time, students should avoid using words such as “aforementioned” and “heretofore”. The tone should be measured (rather than involving excessive use of hyperbole, for instance) and the writing should be reasonably objective. Legal writing is often in the third person. For example, instead of writing “I would argue that …” it is more acceptable to write “it is arguable that …”, Sometimes the first person might be preferable, such as in the introduction where you might say “In this essay, I will argue that …”. While students should develop their own views, they should also acknowledge and deal with any counter arguments. Adherence to conventions of grammar, spelling, etc., and also to requirements of style are very important – a lawyer’s skills are very dependent upon his/her ability to make effective use of language. (A misplaced comma can alter the meaning of a clause, and documents that do not comply with required formalities may be rejected by a court.) Legal writing is usually less discursive than writing in other humanities subjects, and precision is more important than variety. Sentence structure should not be too complex; it is usually unnecessary to make extensive use of adjectives or adverbs, and consistency of terms is often required. For example, when describing a case, the plaintiff should always be referred to as “the plaintiff”. Using multiple descriptions of a person by referring to him/her with a variety of terms ( the plaintiff, the person aggrieved, Mr. X, and so on) may cause confusion. Generally the most important characteristic of the person in a legal argument is his/her legal role (i.e. the plaintiff, defendant, judge, or whoever) 6. What are the best ways of using sources? A: Students must use primary sources. Students need to refer to primary sources (statutes and common law judgments) and not rely on secondary sources (expert commentaries on the law) in problem solving. Even if the secondary source is accurate, it is possible the law has since changed. How should students approach primary sources? • Usually, students will begin with secondary sources, and develop a sense of what the issues are and a framework for their approach to the assignment task. But then they need to check the current state of the law. The module on legal research teaches students how to go about such research. • Secondary sources play an important role in helping students understand the kinds of issues surrounding any area of legislation and the arguments that are brought to these issues. This is especially important for students with very little or no background knowledge about an area of law and the policy or social or legal issues relating to it. • Students may cite course materials when writing their assignments, but usually the first-year research assignment in Legal Process is deliberately set in such a way that the substantive content of the essay will not have been dealt with in lectures. Students will need to engage in extensive research in order to complete the assignment satisfactorily. 7. What are the features of legal argument? A: Legal arguments should do the following: o be clear o demonstrate an understanding of the law o give reasons for the case being made What distinguishes a legal argument from other kinds of arguments? Many textbooks that discuss legal writing refer to the importance of such things as clarity, brevity, and conciseness, but these are important features of writing in other disciplines as well. A most important part of a student essay is that they demonstrate that they understand the law. This usually involves students in identifying the current state of the law. However, they then need to discuss that law in terms of what is required by the task. For instance, students might be asked to discuss whether the law in that area should be relaxed, or made more restrictive. They would need to summarise and evaluate reasons given for and against. Reasons may be of different sorts (moral, social, a need to change the law to meet policy objectives, a need to change the law to create better consistency with other laws, and so on). These reasons would be evaluated, and a conclusion reached on which position seems most persua Students may be asked to compare the law in Australia with the law in another country. Sometimes international students make a comparison with their own country, which can be very useful if it is done well, but sometimes this is a problem because students do not have the legal resources to quote. But where it is done well, it can offer them quite a lot of insight. Although qualities such as clarity, conciseness, and the logical development of an argument are important in many forms of writing, they do seem to have a greater premium in legal writing. Being a lawyer is very much about describing, analysing, and generally communicating clearly. The ability to use language well is therefore regarded as a more important quality than it might be in many other disciplines. In law, the actual words used perhaps have a greater significance than they do in many other disciplines. It is possible that in some other disciplines it is enough to demonstrate that you have grasped the concepts. But in law the actual wording can be critical. (This is perhaps obvious in the drafting of wills, or court documents, and other such legal documents. It is very important to avoid ambiguity. People may easily lose confidence in a lawyer whose language is perceived as poor.)Time is at a premium for practising lawyers. But also important is the ability to get to the heart of a matter very quickly, to be able to recognise what is central and what is not. Therefore, discussion should be limited to only that which is necessary for the purpose at hand. This focus on clarity can also lead to some stylistic differences between legal writing and other forms of writing. For example, as noted above, it is better to use one term consistently, such as “the plaintiff” when describing the person bringing a case. When a client comes to see you they really do want some fairly precise advice. They want the law explained to them in a way they can understand, but which eliminates the superfluous. A common problem in assignments is that students include all the things that could possibly be related. What is important is that the student sift through the legal material to determine what is relevant and irrelevant, and distils it down to its core element, and then applies it to produce reasoned advice. Reasoned advice includes identifying the arguments for and against, making clear the risks in proceeding with litigation or whateverLegal argument can be visualised in linear terms. You explain where you are coming from, develop your case step by step, and then come to your conclusion. You’re trying to build up a chain in a very structured, straight-line fashion. Legal reasoning is sometimes compared to mathematical reasoning. There is a kind of linearity: you begin with step one, go to step two, three, etc. But you have to demonstrate that reasoning too. In maths it is not just the conclusion that matters, but how you get there and the steps you took. There is an element of that in Law. However, not only are there a number of different ways of getting to a possible answer, there is seldom only one possible answer. Student originality may partly lie in finding a slightly different way of dealing with an issue, but what is important is that the reasoning and the steps taken in doing that are made clear 8. How do I think critically in Law? A: Critical thinking may be applied in a manner of different ways, including the following: o make sure your reasoning is clearly demonstrated o deal with the different arguments that might be brought to bear Although it may seem to students that much legal writing concerns the application of the law to a given scenario, this does not mean that critical thinking is not important. Some areas of law are exceptionally difficult in the sense that it is hard to work out what the legal position might be. You might have different scenarios and it might not be at all apparent what would be the outcome if they were litigated. The task may simply be to try and work that out and argue it out. Your argument may then take the following form: You might first argue that a similar approach was taken in a previous case on a related issue; and that if you extrapolate to the present scenario, then the law might actually apply in this way here too. Such an approach may be required in some tasks. But you would also need to show alternative interpretations of the law, and then decide – with reasons – which approach in your view is most persuasive. In other areas, it is much more apparent what the law actually is, and so in a hypothetical scenario it might be clear what the outcome should be. But you might need to look at the broader critiques that have been made. It might be argued that the law as it stands does not produce a sensible result. For example, negligence cases where people are able to sue might have had a negative policy impact. For instance, doctors might have stopped treating patients they see lying on the road because they could be sued for negligence. So there you are looking at the ramifications of the law. Thus, the form your critical thinking takes does depend very much on the nature of the task and the law you are looking at. Dealing with the arguments against – as well as presenting one’s argument for – a particular proposition is the process used in the courtroom; and it translates more generally into legal reasoning and argument. Thus, when you are writing an article for lawyers to read, and trying to convince them, they would think poorly of the article if they see that you have neglected to deal with the counter arguments. 9. How should I discuss policy in legal essays? A: Policy discussion focuses mostly on issues concerning the rationale for – or objectives of – any given law. Students are quite frequently asked to evaluate the law in light of policy objectives. But what does this mean? What we are really looking for is the rationale for the legislation or the objectives it is trying to meet, and the competing arguments for and against reform. In the case of an issue such as reform of euthanasia laws, people will hold a number of quite different views (some think the current state of the law is quite good, some think the laws should be tightened, and others think they should be relaxed). It’s a question of a student identifying what the current state of the law is, and then going on to evaluate the suggestions for how it might be changed. The question will make it clear as to what approach should be taken. It might be to evaluate suggestions for relaxing the law, or evaluate reasons or policy arguments for making it more restrictive. These could be looked at from a range of perspectives, such as political, sociological, or whatever, according to the context. Those arguments then need to be evaluated, but with reference to what the law is, not simply stating in broad terms whether euthanasia is a good idea. So students need to be clear on what exactly the position of the law is at the moment, and the basis of the criticisms, and then determine whether they agree or disagree with the criticisms, and why 10. How can I be “original” and avoid plagarism? A: You show your originality in the way you use source materials to develop your position and find your way through the issues and arguments. Students are often told that their essays will be judged in part on its “originality”. What kind of originality are students expected to demonstrate? What we are looking for is some unique input by the student: originality can be talked of in terms of “value added”. You are trying to add something to the totality of what’s been written before, putting your own personal stamp on it. It is not necessarily something as radical as coming up with a new solution to the problem of, say, euthanasia. It is more a matter of how you sift through the existing sources and make sense of them, how you evaluate the arguments that have been raised, and how you organise the material and your perspective on the material. To the extent you do that well, you would rate high on originality. A common trap is finding an excellent article and using that as your guide, and – while not exactly copying chunks out – rewriting and reorganising them and presenting that as your essay. I think a lot of students who are a bit unsure tend to think that if they quote extensively from someone they are attributing properly – or if they simply say this is what some people have said about this – that they will be on safe ground. They are not confident enough to have a viewpoint, or they fear their viewpoint is not a valid one. In addressing the task, the student must make a case that will be supported with evidence from those sources, but the answer itself will not be found in any of those sources. Originality could be as minimal as sorting out which is the worthwhile from the less worthwhile, and adding a perspective or approach. Thus, originality in students’ writing is not necessarily a matter of coming up with new ideas. Originality is demonstrated most usually perhaps in thoughtfulness about the texts read and issues discussed. This goes beyond simply reproducing material and ideas we find in texts. So what comes out is a product of what’s gone in; it acknowledges what has gone in, but it is assembled and thought of and linked together in a new way. It has something of the student’s voice in it, as opposed to being simply reproduction. 11. What general advice would you give to students? A: look and prepare: o look at examples of good legal writing, and notice how they do things o prepare adequately for your own assignment Students are advised to read a lot of examples of good legal writing (e.g. articles published in the Monash Law Review, which uses an identical style guide). Looking at these might at first be a little discouraging to students – given that they may reflect months or even years of research experience – but they do assist students to understand what is looked for in their writing. As they read some examples of good legal writing, students should read in terms of thinking about the structure of writing, and not simply for the content. If you read articles and look at how the authors use footnotes, you soon recognise what sorts of things are put in footnotes, and how they are used. Students need to understand that footnotes are an easy way of showing their research without cluttering up the body of the text. The inclusion of an interesting side point may not fit in the word limit, but a reference to it can be put in a footnote. Reading good articles is helpful for other sorts of things, such as noticing how the author structures the article, at the way they introduce the topic, and how they build up and work through to the conclusion most important advice for students is to prepare adequately. This means that they should read the question carefully and give themselves sufficient time to undertake research, and to read and digest materials. Then they need to plan the essay structure before commencing writing. They should also think carefully about what is required in terms of writing style and formal requirements (e.g. use of footnotes) before writing. Ideally the essay should be completed a few days before it is due so that it can be put aside and then checked over with a fresh eye.
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