Phenomenology of Error in Legal Writing

Studies show that the legal academy, bench, and bar are concerned with the basic writing skills exhibited by law students and practicing attorneys. Because many students today have participated in rigorous legal writing classes, which address the skills that the bench and bar consider most important, individuals interested in legal education reform should be interested in why this dichotomy exists. Moreover, since legal writing instructors study and adopt feedback and commenting practices from education theory, they are often at a loss to explain why students appear to ignore the feedback they provide on their students’ writing. This article examines the reasons why students make persistent errors in their legal writing classes and may help to explain why those errors continue to be evident once they engage in practice. It reports the results of an interview study of ten students at the beginning of their second year of law school regarding their previous writing experiences and approach to legal writing classes. The study demonstrates that these students largely misunderstood the importance of writing in the legal profession and their own skills as writers, exhibited a disquieting tendency to utilize instructor comments on their graded work ineffectively, and failed to engage in effective self-help to overcome their basic skill errors. Instead, they made changes their instructors specifically marked mechanically but not reflectively. This article explores important findings from the interviews in light of learning theory, relevant literature on legal education, and scholarship on the use of comments in legal writing. It should interest any individuals who wish to overcome the phenomenon of error in legal writing.