Introduction
Thank you very much. I am incredibly grateful, flattered, and thrilled to win this award. I love teaching so much, and to have that love reciprocated is simply awesome. Thank you to Mr. William Rutter and the Rutter family for establishing this award. Your commitment to legal education and to assisting practicing lawyers is as impressive as it is inspiring. It’s an honor to receive an award from you. Thank you to the Rutter Award Committee for selecting me and to Dean Yeazell for his very kind comments.[1]
As many of you know, the speeches given at this ceremony have tended to discuss teaching and one’s views on what makes a good teacher. I will speak to that, and, without making this too long, I hope to share some of what I believe makes good teaching. But, initially, I want to talk about a journey of my soul: a quest for professional happiness that, despite some initial fits and starts, has ultimately been thoroughly rewarded.
Let’s start at the beginning, my childhood. Even as a child, I loved learning, and I loved reading. When I wasn’t playing baseball or football in my yard, I was reading. Books on presidential history. Books on baseball history. Books on almost anything. And here, I want to thank my parents. In addition to loving me, they always encouraged and nurtured my love of learning. I’m incredibly grateful for that. So, high school came, and I was still the person who loved reading and learning. I also loved basketball, so much so that I would have enjoyed becoming a professional basketball player. Sadly, despite a genuine love for the game and a great work ethic, my talent level didn’t permit anything beyond a college basketball career.
Thus, the career of basketball coach and high school teacher came into focus for me. But, when I went to college, I chose a school without a teaching degree program. For some reason, I got it in my head that I wanted to pursue a pre-med course of study. I had minimal interest in science, I don’t like blood, and I’m uncomfortable with human suffering, but somehow being a doctor seemed like a good choice.
But the goal of teaching was still lurking—especially after I was inspired by several tremendous professors during college. I decided that after college I would go to graduate school to pursue a master’s degree in education. I knew I wanted to be a teacher for many reasons. First, I love being in a school environment. Second, as I mentioned earlier, I love learning. I enjoy having my mind opened to new ideas. Finally, I love connecting with others, and just being around other smart people. I thought that teaching would be a great way to continue doing this.
Right after graduation, however, to prepare for my future career, I taught in a summer honors program for incoming high school seniors who planned to attend college. I was awful. Simply, truly awful. Not Tom Holm self-deprecating, self-effacing awful. But truly, genuinely, objectively awful.
So I forsook the dream. But all was not lost. I knew I loved to think; I knew I liked to argue. And I knew I wanted to make my small corner of the world just a little bit better. So, law school it was. I hoped to perhaps someday work in an attorney general’s office and maybe become a judge. But then, after law school and a judicial clerkship, I lost my way. I went to a large law firm. It was an excellent firm, and I was treated very well. The people who I worked with were great, but the job itself just didn’t inspire my soul.[2]
So, I began to think of what else I could do. What was I, a young, unhappy man at a professional crossroads, going to do? After much soul-searching, it came to me: I had to have faith. Faith in what I always knew I wanted to do—teach.
Thus, my evolution into a career of teaching has been a story of faith. Similarly, my career as a teacher has been a story of faith. I’d like to share a few significant things I have faith in as a teacher.
I. Faith in the Analytical Process
First, I have faith in the analytical process, what others would perhaps call the process of lawyering. If you know process, you know everything. There is great comfort in knowing you can always make yourself an expert, even if you’re initially unfamiliar with the law involved in your client’s problem.
That faith in process informs my teaching. It’s not surprising given the classes I teach, but I’ve always viewed law school as an opportunity to acquire tools for learning. In the best tradition of liberal arts, you take classes you enjoy, knowing that what you’re learning in those classes is an approach to legal analysis that will carry you through those times when you lack expertise.[3]
My commitment to secondary sources is symbolic of my faith in the analytical process. As my students know from my passionate, persistent, and consistent reminders, they should always begin their analysis of a legal problem with a secondary source. Reviewing a secondary source or two provides students with an initial foundation for understanding the nature of their client’s problem.[4] This basic foundation allows students to pursue their research more efficiently and to become more of an expert regarding their client’s problem in a shorter period of time than they would have without the secondary source.
I believe that, in the end, any law professor’s job is not to teach expertise. It’s our job to help students develop tools with which they can acquire their own expertise. Laws change. Rules change. Clients change. Facts change. The only thing that is constant is how one approaches the craft of legal analysis. We give our students many valuable lessons, but, beyond a foundational knowledge of black letter law, students should leave law school with an approach to legal problems that they can use to adapt to all the myriad situations they will confront as a lawyer.
II. Faith in Lawyering Skills
Because I have faith in process, I have faith in Lawyering Skills. I am so very proud of what I teach. Lawyering Skills provides a strong foundation and context for almost everything that students learn later in law school, as well as in their careers.
How does Lawyering Skills accomplish this important feat? It is a class that externalizes process. It is a class that explains how to get to a satisfactory answer, or if—as is usually the case—an answer is not available, to get to a compelling argument after a thorough and complete analysis of the issues. Students get to work with an experienced lawyer and teacher who models good legal analysis and articulates the questions that a good lawyer has to ask herself when she is practicing.
It’s not a writing class, nor is it a research class. It’s a process class. The underlying goal of the class is not to teach what to do, but to teach how to do it, and, most importantly, to teach why the suggested approaches to problem-solving are effective. For example, let’s talk about teaching research. You could easily take a bibliographic approach, simply informing students about what sources are out there and perhaps illustrating what information each source contains. But that is unhelpful, as it only teaches the “what,” rather than the “how” or the “why.”
Instead, you focus first on the “how?” How does one use the myriad research tools available? How does one synthesize a uniform approach that applies to several research tools?[5] How does one integrate all of these tools into a comprehensive research plan, especially when even very efficient legal research involves some trial and error and different sources may be more effective in different circumstances?[6]
The question of “how?” leads to the even more important question of “why?” Why does one use a secondary source?[7] Why does one perform a West Key Number search?[8] Real learning especially occurs at this level. If you get students to see the “why?” in something, they are much more likely to accept what you’re suggesting as legitimate and principled. They are also much more likely to internalize what you’ve taught them and apply what they know in their practice. They will embrace process and ultimately become more effective lawyers.
I use a similar approach when teaching “legal writing.” Not once have I thought I’m teaching a writing class. This is good because I’m not teaching a writing class. If I were teaching a class where I focused primarily on teaching or illustrating legal writing formulas like CRAC, CREAC, and CRRPAP,[9] I would shoot myself.[10] Similarly, if I were teaching a class where I was focused primarily on sentence structure and grammar, I would defenestrate myself.
Instead, I’m teaching a pure thinking class, which is a pure delight. Lawyering Skills is a class in which instructors need to externalize process by focusing on the analytical process itself, divorced from any particular doctrinal subject. For that reason, Lawyering Skills is an incredibly challenging class to teach: You’re out there on your own. You have no theory or doctrine to back you up. You’ve got nothing to support your teaching points but the knowledge that you can justify every statement you make to your students with a principled reason as to why your approach to the problem is effective and can work in other related situations in which the issue might also arise.
Thus, I am forced to consistently ask the question “why?” Why is a particular statement the holding of the case? Why is a particular fact central to the court’s holding? Why does a particular fact support a principled argument?
I persistently engage in this process because writing cannot be divorced from thought. At times, we tend to simplify bad legal analysis as bad writing. After working with so many talented and bright students, my experience is that most bad writing isn’t because a student is a bad writer, it’s because a student is an inexperienced thinker.
Clarity of thought is expressed through clarity of writing. Most good technical writers will still write poorly if they don’t have clear ideas to express. If students don’t fully understand their authority, or if they don’t understand why their facts are relevant to their authority, they will not analyze the problem clearly or completely, which means that their writing will not be clear and concise.[11]
In the end, I’m teaching that one of the best signs of intelligence is the ability to communicate clearly. I always tell my students: Not once should you try to show that you’re smart. You are smart. You don’t need to show it off. Instead, let your intelligence shine through by clearly communicating what you know. Take your expertise and make it easily accessible to others. Take difficult ideas and be smart enough to conceptualize them in a simple, effective way that makes it easy for novices and people less expert than you to understand your argument. Because that’s what lawyers do. They communicate to clients, colleagues, and judges, all of whom know less about an issue than a lawyer does after she has analyzed it fully.
So, how do you get students to do this? You embrace Lawyering Skills’ approach to teaching the lawyering process: repetition and critique, in and out of class. It’s why we work through multiple in-class exercises that are designed to illustrate an approach to legal analysis and its written expression before we ever give students an out-of-class written analysis assignment. Moreover, it’s why we give students five substantial written analysis exercises each academic year. Students can only learn the process of written analysis by doing written analysis.[12]
Implicit in this approach is the idea that the analytical process can and should be taught. The analytical process is not a mystical thing. It is not something that only a few particularly gifted people grasp. Instead, the analytical process is something that can be learned. Students can learn this process by working through problems, where their teachers model the analytical process by identifying the questions a student should be asking herself whenever she analyzes a problem.[13]
This takes a painstaking willingness to work through a problem. Rather than simply pointing out that something doesn’t work, you must identify why it doesn’t work, and, most importantly, tie why it doesn’t work to a broader analytical principle that students can then use when they approach their next problem. Students need some innate ability, and a handful of students are “naturals.” But learning to be a lawyer is an analytical craft. And, like any craft, you’re not only relying on native intelligence. You’re relying on experience. You’re relying on practice. You’re relying on process. It’s from this practice with performing analytical tasks that students become better at analyzing legal problems.
It’s what I always tell my students early in the fall semester when they’re struggling: “You’re smart, but you’re untrained. You’re inexperienced.”[14] It’s true—my students in April are no smarter than they were the previous August. However, they are much, much better at thinking like lawyers. It’s because they’re trained. It’s because they’re more experienced. It’s a labor-intensive process for both teacher and student, but it’s this labor that gives students the opportunity for a rewarding career.
“Yea, though I walk through the valley of the shadow of death, I will fear no evil: for thou art with me; thy rod and thy staff, they comfort me.”[15]
This is perhaps the purest expression of Lawyering Skills. I am a constant thorn in my students’ sides. They get eight research assignments over the year. They also get five substantial writing assignments, three of which formally entail multiple drafts.
For our students, the analytical process is their rod; it’s their staff. What allows students to persist through all of this work, as well as through their legal careers, is the comfort that they carry one thing with them, always: a coherent and consistent approach to analyzing legal problems. They can know absolutely nothing about an issue—and that will happen a lot early in their careers and still will happen much later in their careers—but they still know everything if they just know how to approach the process of analyzing legal problems.
And how do you teach process? You give students questions to ask themselves, not answers.
III. Faith in the Socratic Method
And thus . . . I have faith in Socrates. More specifically, I have faith in the Socratic method. You can’t lecture on a mode of thought. Instead, you have to enable students to do the work themselves. They do the work by answering your questions, and thus, through practice and experience, learn how to ask themselves the questions necessary to fully analyze a problem.
To have faith in the Socratic method, you have to have faith in your students and their capacity to engage in the enterprise of lawyering—to be active, not passive, learners.
The Socratic method is hard for a teacher. It requires you to give up control. You become dependent on your students’ answers, rather than on your statements.[16] And it challenges you to identify follow-up questions to whatever answer a student happens to give you. And it’s scary, because you don’t know what the answer is going to be—especially early in the first year when students are inexperienced. It also requires patience, because it takes longer to analyze a problem if you’re not analyzing the issue yourself.
It’s a painstaking process, and you work through less material than by lecture. But, by doing less, you achieve more.[17] You give students the tools to analyze rules on their own, rather than teaching them to depend on others to analyze those rules for them.
And, there is a joy to seeing a student work through an issue on his own, even when it appeared at first that he couldn’t do it. To accomplish this, you need to master the skill of first asking a student broad questions to see if he can work through an issue on his own, and then move to narrower, more focused questions if the student is struggling. After focusing the student, you then slowly move him back to the broader question that he can now answer, because you took him down the path.
There’s also a joy to the simple question of “why?” My experience is that many “bad” answers have the genesis of a good idea in them. For example, I remember one year when I was teaching the very first class in our law school’s summer program. The goal of the class was to help students understand how to read a case and how to use a case to formulate arguments. So, I gave a short lecture on a process one can use to analyze a case, emphasizing such fundamental things as identifying the issue, identifying the holding, identifying the relevant facts, and identifying the court’s reasoning. I then moved on to a discussion of the case we were working with, and I asked a student an open question along the lines of: “How are you going to begin analyzing this case?” The student immediately said, “I want to look at the year of the decision.” Especially in the context of what I was trying to achieve in this part of the class, the answer was truly dreadful. But, I asked the simple question, “Why do you care about the year?” I received a fabulous answer. She said, “The case is old, so maybe there is some change in the law or change in policy that has happened since the case was decided that could be used to undermine the court’s decision.” Within twenty minutes of her first-ever law school class, she was thinking about advocacy, even though the nature of her actual response suggested she was clueless. And, by asking “why,” I now had a teaching opportunity to tie her concern into the broader process of lawyering.
In the end, the Socratic method is what allows you to externalize process. You can guide them, but students can only get to where you want them to be with their own effort.
Rather than lecture about rules, you must choose to engage students in legal analysis. Students will only learn to be agile with rules if you ask them to work with rules. Make them justify their answers—always—even when their answer is a good one. That justification depends always on authority, and that answer is dependent upon the nature of a client’s situation.
In the end, lawyering is a craft. You can learn part of the craft through reading, and you can get a basic foundation by listening to another person tell you what to do. But in the end, you can’t be told how to do a craft. For example, you can’t tell people how to be a doctor. They have to practice to become a good doctor. It’s why there are cadavers and why there are medical residencies. Hypos and questions are our cadavers, as our students who struggle with those questions and hypos can easily attest.
But, sadly, for most students, process divorced from doctrine is not immediately engaging. It’s thinking about thinking, which is hard to do. It’s not as inherently interesting as the balancing of constitutional privacy rights against protecting citizens from harm, or even debates about the scope of the Commerce Clause. (As a student, I loved the Commerce Clause. To me it was fascinating.) Thus, you need to get your students excited about the analytic skills they’re learning.
IV. Faith in Passion
How, then, can you get students excited about the process of lawyering?
You have faith in passion. I try to bring passion into every class I teach, simply because I believe that what I am teaching is so important to my students’ futures. To get students to care about process divorced from doctrine, you have to have passion for the students, and you have to have passion that what you’re teaching matters.
I’ve found that, simply by letting students know that you care that they learn and that you believe in what you’re communicating, they are much more willing to embrace what you’re offering. This means bringing energy to every class, as if you’re having a mortal battle with inexperience that you have to win.
As some people know, I love music. And part of that love is a penchant for R&B music. Most of the time my taste is reasonably good. But, especially in high school, it wasn’t always so good. That’s what led me to an Ashford and Simpson concert. They wrote some great songs for some Motown stars, but on their own, they were not overly impressive. Fortunately, only one thing stands out from that concert. It was a short speech by Nicholas Ashford, delivered near the end of the concert before singing another mildly good song. He said to the crowd, “Whenever I sing, I sweat. And my fans always ask, ‘Nicholas, why do you always sweat so much?’ Wanna hear why I sweat so much?” [Crowd begs for an answer].
He said simply, “Because I’m giving you all I got.” [Crowd goes wild]. Teaching is fun, and when you have passion for what you do, you give it all you got.[18]
Besides my passion for teaching, I am passionate about my colleagues and friends. So many people have had such an influence on me; I can’t possibly thank them all. And, similarly, I’d like to acknowledge all the good people in this school—my faculty colleagues and my staff colleagues—who have been so fun and so nice to work with.[19]
I also want to thank my past[20] and present Lawyering Skills colleagues, some of whom were excellent mentors and some of whom have become dear friends. I’m told I get a lot of credit for how strong our Lawyering Skills Clinical Program is—and I’m proud of what a great class we’ve developed—but that credit should be shared with my past and current colleagues. Every class I teach, I impart something contributed by my past and current colleagues. Similarly, I pool the collective wisdom of Lawyering Skills instructors when I work with a new instructor in the Program.
And, of course, I’ve gotten so much advice and wisdom from so many of my colleagues. There are many stories to choose from, but I’d like to share one of my favorites. I remember the summer just before my first year of teaching. Clyde Spillenger asked me and the other two newbies, Dana Gardner and Janet Dickson, out to lunch. One thing he said struck me and transformed how I thought about the classroom dynamic. He said simply, “All students want to do is to look up to you.”
I’m not sure if he’s right about this. It frequently seems that all my students want to do is laugh at me. But his statement remained a touchstone for me. The beauty of this statement for me was the following: If you start with this precept, you can set a positive tone for the class. I didn’t need to worry about establishing authority. I already had it. Instead, I could work side by side with my students, with a foundation of trust that our roles were immediately and readily understood, so our roles could evolve comfortably and easily as we developed increasingly positive rapport. We could have a partnership in learning.
V. Faith in Love
Thus, I was able to put my faith in love. I love students. Students are the best thing about teaching, and I’m incredibly fortunate I have a profession and a class that give me so much contact with students. You offer them love, you offer them compassion, and the rewards are great. You can trust them, and you benefit from your experiences with them.
As a teacher, you put your trust in students all the time. During our first year of teaching, I remember Dana Gardner saying the following after a bad class: “Being a teacher is like being an actor, except when you stink one day, you have to perform in front of the same audience the next day.” But the good thing is that students, in my view, are very forgiving. If they see that you’re trying, if they see that you genuinely care about their progress, they will forgive any number of teaching mistakes.
I’ve found that if you give love to students, they will give love in return. I remember the first class I taught in law school. I was terrified of public speaking, and I can assure you that my first class began poorly. I stammered. I paused in awkward places. I said very little of substance.
I was dying up there, but I found comfort in the smile and undivided attention of a student—a student who was smiling and being attentive simply because she was a nice person who saw that I was struggling on my first day. This student exemplifies how kind so many of our students are. I received very good evaluations at the end of my first year. However, upon reflection, I was at best a mediocre teacher back then.
Despite my shortcomings, my students gave me love. They wanted me to succeed, so they offered love and forbearance. The comfort that my students wanted to learn, and wanted themselves and me to succeed, gave me the time I needed to evolve into a good teacher.
I feel that love every year. While not all of my students have it, many of my students do. I see it in their eyes. I see it in their smiles. And, I see it in their engagement in the enterprise of learning. In my view, when you teach, you don’t really need to worry about occasionally showing weakness or about occasionally being self-deprecating. You can show your humanity. If students see that you care, if they see that you love, they will respond in kind.
So, I would like to end by offering students, past and present, my love. Lawyering Skills on its face is the worst class in the world to teach. I have to critique over two hundred papers a year. Add to that reviewing over two hundred research assignments and grading two sets of papers and an exam, and it appears to be a job that only few could love.
But yea, though I walk through the valley of the shadow of death, I shall fear no evil, for students are with me. They are my rod, my staff. They comfort me. My job is to work closely and consistently with smart, talented, well-meaning individuals. And in turn I receive small and large acts of kindness, as well as endless amusement. Students make all the work worthwhile. It’s a daily delight and a yearly joy.
It’s just warm love
It’s just warm love
And it’s ever-present everywhere
And it’s ever-present everywhere
That warm love.[21]
Thank you all so much for coming. This is really a thrill for me, and I am grateful you could share this day with me. Thank you.
* Director, Lawyering Skills Clinical Program, UCLA School of Law. Professor Holm received UCLA’s Distinguished Teaching Award in 2000, just his fourth year of teaching. [1]. Professor Stephen Yeazell ably served as Interim Dean during the 2009–10 academic year when the author received this award.
[2]. I am very grateful for my time at Morrison & Foerster’s Los Angeles office. The firm’s lawyers consistently modeled top-notch advocacy, while maintaining the highest level of ethical and professional conduct. I would especially like to thank David Babbe, Joseph Gabai, and Mark Gillett. They served as excellent mentors and remain good friends.
[3]. This is especially important for law students and young professionals. Part of the process of maturing as a lawyer and as a person is understanding what particular legal career you’d like to pursue. It’s very difficult, if not impossible, for students and young lawyers to have a clear sense of what they want to do as legal professionals. They don’t have nearly enough context and information to make that decision. Moreover, people’s needs and goals change over time. Not surprisingly, then, many young professionals find their first job choice to be very unsatisfactory, even when they went to law school to pursue that very career. These young lawyers then move on to a markedly different second job. Thus, in a narrow sense, the initial expertise they acquired in law school preparing for their first job is largely worthless, but, in a broader sense, their schooling should provide all the training they need for their second job. If their courses were taught well, these students learned about problem-solving, which they can apply in a new career, even if the new career involves a very different subject matter from the classes the students took in law school.
[5]. Perhaps the best examples of this are traditional print sources such as secondary sources, digests, and annotated codes. Each of these sources serves a different purpose. However, these sources can all be approached using a similar method: (1) search the index of the source to determine how the publisher of the source has categorized the legal issue(s) the student is analyzing; (2) examine the table of contents for that category to determine the various sections of the source that need to be reviewed in order to exhaust the information available in the source; (3) evaluate each relevant section in the source; and (4) review the supplement of the source. By providing this overall framework, I have accomplished more by doing less. Other, more specialized print tools operate in a similar manner. Thus, by providing students with a framework for relying on print sources, students can use the framework when they approach more specialized sources applicable to their area of practice.
Moreover, this framework—especially by providing an overview of the research area in the table of contents—encourages students to be inclusive in each step of their research process, seeking all potential avenues of finding helpful authority. On many occasions, the table of contents identifies additional relevant topics that the index does not. This framework also allows students to see their research issue in a broader context.
[6]. Much of this involves getting students comfortable with fluidity and accepting that, even though their use of a particular source did not lead to any tangible results regarding that client’s problem, that search remained necessary to ensuring that their research process uncovered all potentially relevant primary authority. This in turn requires the teacher to give clear guidance when there are “correct” choices and to identify the areas in which students could legitimately differ in the order of the sources they would initially review. For example, if a student is largely unfamiliar with the law involved in her client’s problem, she should almost always begin her research with a secondary source.
Similarly, when a student is unfamiliar with a legal problem, it is usually best for the student to rely on terms and connectors and/or natural language searches near the end of her research, after she has reviewed primary authority identified by secondary sources, Key Number searches, annotated codes, and citator services. If a student is very familiar with the cases and statutes involved in her problem, she can craft a more focused search than she could have when she had less familiarity with the problem. After that basic guidance, a teacher has to encourage students to view research as a fluid process, one that frequently will require multiple reviews of the same type of source. A case discovered in one tool may require the student to revisit a source she had already reviewed. For example, a student may find a case during her KeyCite searches that identifies a West Digest Key Number that she had not previously reviewed. Thus, she would need to circle back to Key Number searching to review any additional cases identified under that newly discovered Key Number. See infra notes 8 and 10 for how to integrate research tools.
[7]. For example, I encourage my students to start with secondary sources for two fundamental reasons. First, a secondary source introduces students to the overall concepts relating to their research issue. A good secondary source also will synthesize rules surrounding the legal issue(s) the student is researching. As I emphasize to my students, the law can be incredibly complex. It is very easy for students to overlook or misunderstand issues that are relevant to the legal problem they have been asked to address if they are not familiar with an area of law. A secondary source will help students avoid mistakes that would possibly lead to an incorrect or insufficient analysis of their problem. Moreover, when students are using a secondary source, they are looking for theories to argue. They want to identify potential arguments that they or their opponent could make in their client’s situation. Thus, students should be inclusive in their research, walking down many different paths to ensure they have identified all possible theories relating to their issue. Second, secondary sources will usually give students citations to primary authority. Thus, when they begin using other research tools, they will likely already be aware of any pertinent statutes and some leading cases, which can in turn help them conduct more efficient searches using key numbers and annotated codes.
[8]. Given the accessibility of Westlaw and LexisNexis and most students’ comfort with computers, I try to draw parallels between print resources and electronic resources wherever possible. For example, while I teach students the process of Key Number searching in print and in Westlaw, my larger point is noting why one performs a Key Number search in the first place. The simple reason is that Key Number searching allows students to find cases that address the same issue under one or a few Key Numbers. Thus, students are taking advantage of West’s conceptualization of the legal issue(s). This allows students to do topic-based searching; once they identify the pertinent topics (organized by Key Numbers), students have the opportunity to identify a treasure trove of potentially helpful cases. The reason to do Key Number searches is the same, whether students use print or electronic sources.
Moreover, this process allows me to set up a real comparison between topic-based research tools and keyword-based research tools. As discussed, I encourage my students to use topic-based sources like secondary sources, Key Number sources, and annotated code searches first, before attempting any keyword-based searches. After reviewing the materials identified in these topic-based sources, students have a much deeper understanding of the issues involved in their research. At this point, students can craft very focused keyword-based searches that will identify additional authority that may not have been identified in the topic-based sources.
Thus, by emphasizing how each research tool works and noting how each research tool provides a different means of finding primary authority, students easily see why a good research process involves utilizing all available research sources. As a result, my students don’t immediately and slavishly rely on keyword searches. Instead, they work systematically through all the research tools that are available for their particular research problem. Students rarely neglect a relevant research source and, with practice, become increasingly effective in using it, because they know why using that particular source helps them advance their understanding of the universe of authority.
[9]. The acronym “CRAC” stands for “Conclusion, Rule, Application, and Conclusion.” The acronym “CREAC” stands for “Conclusion, Rule, Explanation, Application, and Conclusion.” The acronym “CRRPAP” stands for “Conclusion, Rule, ‘Rule Proof’ (a summary of the precedent case), Application, and Conclusion.” Common to each of these and similar formulas are the following: (1) lawyers advocating a position should begin with a conclusion that immediately informs the reader the endpoint of the author’s analysis; (2) lawyers should identify and articulate the rule that applies to their analysis before offering their analysis; and (3) any summary of case authority should also be offered before lawyers present their analysis.
Most, if not all, legal writing instructors rely on one of these acronyms to help illustrate and teach an effective structure for legal arguments.
[10]. These writing paradigms are important to beginning law students. Unless you give students a foundational, paradigmatic approach to legal analysis, you don’t have a baseline from which to teach the process of written analysis. However, whichever formula a professor uses, it should always be used as a means to an end, rather than as an end in itself. If you identify for students what each portion of their particular writing paradigm does, two important things happen. First, students will no longer view the paradigm as arbitrary. Instead, students will see for themselves that there is a principled reason for why they should typically structure their analysis in that manner. Second, students will understand the fundamental reason why the paradigm is usually effective: Each segment of the paradigm provides a foundation for the next segment of the paradigm. Once students understand the goals of the paradigm, they have the analytical freedom to violate the strictures of the paradigm, serving the underlying goals of the paradigm while making their particular analysis of the problem resonate with the reader.
[11]. Out of the many experiences where I’ve seen this phenomenon in action, the most memorable relates to a very strong student I had in Lawyering Skills several years back. This student was one of the best thinkers and writers I’ve ever had. She structured arguments concisely and persuasively, and her writing style was direct and forceful. She clearly understood “how to write.” However, a year later she showed me a paper she was writing for a seminar that she was struggling with. Unlike her work in Lawyering Skills, her seminar paper had poor sentence structure and ineffective paragraphing. Moreover, unlike her work in my class, she did not directly advance her arguments. Instead, she either talked around her point or restated the same idea in several different ways, apparently in the hope that one of those ways might be effective. I asked her what her thesis was. She couldn’t fully articulate it. Her problem was not native intelligence or writing ability. Instead, this was her first attempt at writing an academic paper, rather than a practice-oriented memo or brief. Because forming theoretical ideas was new to her, she naturally struggled in her first attempt at it.
[12]. Of course, this is where critiquing becomes important. Students will continue to make the same mistakes unless their professor clearly identifies the analytical mistake and offers an analytic framework for how to avoid the mistake in their future work. If you are doing an effective critique, you aren’t really worried about making the particular piece of work you’re critiquing better. A line edit will improve that paper but provide no means of helping the student make her next paper better. Instead, the goal is to provide a critique whereby students can develop their own self-critiquing tools, which is done by identifying ways of approaching legal analysis that are tethered to the students’ particular assignment and applicable to most other analytical problems. This helps students in at least three fundamental ways. First, students can apply their lessons from their current assignment to their future assignments if you tie what they are doing to the larger analytical goals of their analysis. Second, this approach reinforces the idea that students should not rely on rote learning tools in law school. Third, if you give students a principled reason for why they’re doing something, they are more likely to internalize it and less likely to find it arbitrary.
[13]. Most law professors I suspect had the good fortune of being able to “get it” regardless of whether their professors offered them pedagogically sound learning opportunities. While some of our students may “get” law school, most don’t. Those students who don’t just “get it” are the people we’re teaching. Our own ability to perhaps more readily understand legal analysis during our legal education should not inform our pedagogy.
[14]. Naturally, in my personal meetings with students, I provide more context and support when I deliver this message.
[16]. Of course, the Socratic method is very challenging and intimidating for students. They are out there on their own once a professor asks a question. This is terrifying for many students, especially early on when students often lack even the analytic framework for understanding the professor’s questions, much less a satisfactory answer or argument in response to the professor’s questions. Students can perhaps take comfort in knowing that professors who rely on the Socratic method are also out on a limb, trying to provide focus for the class when they’ve given up some control over the content of the class to the students.
[17]. In many instances, students can find a good commercial outline or hornbook relating to their class. Moreover, professors can identify textbooks, helpful articles, or other readings relating to the subject area they are teaching. This is certainly true for legal research and writing. Because professors can provide students with a substantive foundation for the topic before class, professors don’t need to regurgitate that information in class. Instead, professors are free to help students learn how to apply the principles addressed in the readings by working through problems that allow students to get agile with those principles. This allows students to be active learners, rather than passive recipients of information.
[18]. This is perhaps exemplified by my desire to keep my classrooms as cold as possible. As many professors know, this serves the salutary purpose of keeping students awake. I genuinely feel bad for all my students who are wearing flip flops and shorts yet are also wearing hoodies pulled up over their heads, just trying to stay warm. But this is very necessary. It’s necessary mainly because I care about me. I am working hard up there, trying to instill joy in the analytical process. Like Mr. Ashford, I’m giving it all I got.
[19]. I’d like to acknowledge some faculty and administrators who I thanked during my speech. Then–Interim Dean Steve Yeazell and Vice Deans Devon Carbado and Steve Bank, all of whom provided excellent leadership during our school’s transition between deans. Professor Jerry López has been a wonderful friend and mentor. Professor Jon Varat is a model of what a senior faculty member should be. He’s always been generous with his time and support. Former Associate Dean Barb Varat, as we all know, is a model of efficiency and fairness.
I’d also like to thank the good souls who staff the Records Office. I take a trip to the office at least once a day, just to enjoy the good souls who work, or have worked, in that office. Sean Pine, John Abbott, Doug Myers, and Pei Pei Tan all stand out as good friends who have been sources of joy and amusement throughout my tenure at UCLA. Assistant Dean of Students Liz Cheadle has also been a wonderful friend and a fount of advice and support. I would also like to include the good souls who work in the Dean’s office, including but not limited to Stella Ong, Noel Shimizu, Lauren Kim, Edna Sasis, and James Warren.
And I would like to also add Kristen Holmquist, the best friend and colleague I have ever had. I feel I get smarter just being around her. She has tremendous warmth and kindness, and I can always count on her support. And, speaking of friends, I am grateful for all my friends who have filled my life with immeasurable joy. My friends are fun, smart, and festive. They keep my brain smart, quick, and active. Otherwise, I simply can’t survive amongst them.
[20]. Dana Gardner and Janet Dickson began teaching the same year I did. As anyone who has taught knows, the first year of teaching is incredibly stressful and challenging. Dana and Janet were so thoughtful about teaching our course and were also sources of wry humor when things were particularly difficult. Much of what I learned about teaching spawned from their good ideas. I’d also like to acknowledge Lillie Hsu and Brad Sears. With their help, I substantially revised the Lawyering Skills curriculum several years ago, especially with regard to how we teach effective written analysis and statutory interpretation. While these colleagues are no longer teaching Lawyering Skills at UCLA, their substantial contribution to the Lawyering Skills Clinical Program lives on, and their presence is much missed.
