Legal writing is not the only course that teaches written analysis. Doctrinal courses do too. Legal writing skills, including research and preparation of a work product over days or weeks, develops important skills. The skills of writing essay answers in doctrinal courses are unique in many ways. Although legal writing skills overlap with the analysis required in an exam, many skills are different. Students have to be able to analyze fact patterns and select issues, typically under time pressure. They must state rules precisely. They must apply relevant facts to rules and often reach sub-conclusions on the way to an ultimate conclusion (e.g., the citizenship of different types of parties on the way to determining whether complete diversity exists). Even more subtly, students have to make judgments under pressure about where to spend limited time in an essay answer because the issue is more important than others, facts are disputed and could lead to different conclusions based on one’s analysis, or the like.
ABA Standard 314 now requires “meaningful feedback” to students. It does not draw the line at meaningful feedback on student’s ability to brief cases, to answer Socratic questions, or other parts of the learning process. The skills of an essay exam (perhaps mixed in with multiple choice) will determine a student’s semester grade. Yet, if there is an area in which doctrinal classes have provided the least feedback (indeed, arguably, the least training in the first instance), it is in essay exam writing. First-year law students are led to believe that they’ll be equipped to answer exams if they read and brief cases, attend classes, prepare outlines, etc. Yet many are not prepared and learn only after having gone through the experience of exams, following up to see what the professor was looking for in an answer, and adjusting as they make their way through law school.
Having recently given my first graded mid-term in civil procedure, I’m convinced that I have not in the past (without such a mid-term) prepared students as well as I could have in performing the particular skill involved in time-pressured written analysis of legal problems. I recently had my class take an essay in which they had an hour to write an essay answer responding to a challenging jurisdictional essay. I then prepared a rubric showing the point range for each part of the answer and, for every student, provided a copy that reflected the points the student earned (or failed to earn) on each part. As is usually the case when I grade at the end of the semester, I saw some very good written analysis in a small segment of exams. What bothered me is that I had met with other students throughout the semester, know they had worked hard, and really believe they knew the concepts but had not yet developed the skill of exam analysis. They just needed an opportunity to write an essay answer under time pressure and see, through the rubric and our class discussion, how they could answer more efficiently and effectively.
After grading the midterms and providing them with the rubric, I carved out a class and devoted it solely to going over the exam, how to spot issue and organize them, how to recognize facts that ought to have been analyzed thoroughly, and how to work toward a logical conclusion.
I realized that this mid-term (and particularly the feedback) seemed to bring home to most students the connection between what they had learned and how they needed to express it. The growing awareness among a larger group of students about what they would have to do to answer essays was the most striking part of this process. Students had their exams, with the personalized rubrics in front of them. After the review class, students had to write a paper summarizing what they learned from the mid-term, what they did positively and could build on, where they need to develop skills, and exactly how they will go about developing the skills.
So, ABA Standard 314 has helped not only the students but this professor. I now know that I need to regularly include assessments on which I provide feedback such as I did on this mid-term. The results on the final exam in my Civil Procedure class may improve as a result of the formative assessment—or they may not. However, I believe my students in this class have received the kind of feedback that allows them to make improvements and to practice putting what they know on paper. They at least have the chance to perform well.
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