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TeachInG souTh afrIcan law sTuDenTs (leGal) wrITInG sKIlls

E Snyman-Van DeventerBIuris LLB LLM LLM LLDDepartment of Mercantile Law, University of the Free State

CF SwanepoelBA LLB LLM LLDDepartment of Procedural Law & Law of Evidence, University of the Free State

1 Introduction

The title of this article, “Teaching South African Law Students (Legal) Writing Skills”, implies significantly more than what can be inferred at a glance. Legal writing as a core subject of the South African undergraduate LLB degree has been largely absent. South African scholarship on teaching legal writing skills is rare, relying mostly on foreign sources. This phenomenon of the South African legal education landscape exists despite the fact (and sometimes the obvious must be stated), that every legal practitioner needs to be able to carry out legal writing in some form; it simply is a critical skill for legal practice. This article will aim to stimulate debate and engagement among South African legal academics on the establishment of legal writing courses as core subjects in the LLB curriculum. In doing so, it will set out the steps that have been taken by the Faculty of Law at the University of the Free State (“UFS”) in addressing the legal writing vacuum that has existed for many years. The endeavours undertaken by the UFS have been implemented within faculty-specific constraints, many of which may be familiar to other South African legal academics. They are not presented as the only option to solve legal writing problems and how to teach legal writing to law students. These constraints, as well as a few key notions when embarking on the design of a legal writing course as part of the LLB undergraduate programme, will therefore be briefly referred to before the UFS Faculty of Law initiative is examined in more detail.

The time for a debate on the introduction of legal writing courses as a core subject in the LLB curriculum has, however, now arisen and it is also important in the broader context of a review of tertiary legal education in South Africa.1 An LLB summit was held on 29 May 2013 on the crisis in legal education in South Africa to which all stakeholders in South African legal education were invited.2 The failure in the past to have a proper discourse on how, for example, to inculcate many important legal skills through subjects that have

1 L Greenbaum “Current Issues in Legal Education: A Comparative View” (2012) 23 Stell LR 16-39 The author provides a comprehensive discussion on the state of legal education in South Africa

2 M Sedutla “LLB Summit: Legal Education in Crisis?” (2013) De Rebus <http://www saflii org/za/journals/DEREBUS/2013/113> (accessed 03-10-2013)

traditionally conveyed theory of law alone means that valuable opportunities to broaden the skills base of the country’s law students were lost. It is predicted that this failure, against the general background of an in-depth review of legal education in South Africa, may precede a change. It is with reference to the timely call by Greenbaum in particular,3 that South African legal educators should increasingly engage in scholarly discourse on legal education, that this article is offered. The steps taken by the UFS Faculty of Law to address the teaching vacuum in respect of legal writing and other critical skills are presented for consideration in this article. It is aimed at stimulating debate among South African legal academics on the establishment of legal writing courses as core modules in the LLB curriculum.

2 Background

According to the Higher Education Qualifications Framework (“HEQF”):4

“[A bachelor’s degree] has the primary purpose of providing a well-rounded, broad education that equips graduates with the knowledge base, theory and methodology of disciplines, and enables them to demonstrate initiative and responsibility in an academic or professional context.”5

The HEQF also refers to professional degrees, which entail a higher volume of learning as well as greater cognitive demands. A professional degree places more emphasis on intellectual independence and research skills,6 and is usually followed by further professional development. A professional degree is required to enter or practise a specific profession.7 In this regard the LLB must thus have as an outcome intellectual independence and the development of research skills. Legal writing exercises are the ideal way to enhance intellectual independence and to teach research skills.

The development of both knowledge and skills is recognised as extremely important and vital to produce employable graduates.8 Both knowledge and skills are especially of critical importance for a law graduate to become a successful legal practitioner. All lawyers or legal practitioners need to write different forms of legal documents, opinions or letters in the course of their careers. No lawyer can function without ever having to produce a legal document. Legal writing is thus seen as a critical lawyering skill.9 According to Schiess:

“[L]egal writing is a form of expository writing in which the focus should be on the reader’s ability to understand.”10

3 Greenbaum (2012) Stell LR 16-394 GN 928 in GG 30353 of 05-10-2007 15 236 237 248 I du Preez & A Fossey “Developing Academic Writing Skills as Part of Graduate Attributes in

Undergraduate Curricula” (2012) 26 SAJHE 346 346-347; BT Feeley “Training Field Supervisors to be Efficient and Effective Critics of Student Writing” (2009) 15 Clinical Law Rev 211 212

9 D Dickerson “Legal Writing in the Academy 2000-2010: A Decade of Promise and Progress” (2011) 17 J of the Legal Writing Institute xxxix; JD Feerick “Writing like a Lawyer” (1994) 21 Fordham Urb LJ 381 381; JD Gordon III “An Integrated First-year Legal Writing Program” (1989) 39 J Legal Educ 609 609

10 W Schiess “Legal Writing is Not what it Should Be” (2009) 37 SU L Rev 1 2

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It is often stated that law students (and lawyers) write poorly.11 However, this sweeping statement must be put in perspective. The nature of the current education system in South Africa renders a large number of students under-prepared for higher education,12 lacking basic writing skills and knowledge of grammar and spelling.13 This poses a considerable challenge for legal education. It is clear that a law lecturer/teacher is expected to teach not only substantive law, but also critical skills, of which legal writing forms an important and integral part.14

Offering legal writing as a fully recognised module or subject in an LLB programme is unfortunately not possible for most law faculties in South Africa. This is largely due to the already overburdened content of the programme, and, in particular, the fact that the law degree programme changed in 1998 from a five-year postgraduate degree (a three-year undergraduate B Iuris and two-year LLB, or four-year undergraduate B Proc and a one-year LLB)15 to a four-year undergraduate degree.16 Although it may be argued that the answer is simply to reduce the number of doctrinal modules and replace them with legal writing modules, it is not so easy for numerous reasons. To reduce doctrinal modules through curriculum reform is a slow process. The curriculum reform processes started by many faculties (for example, North West University, the University of Fort Hare, University of Pretoria and the University of the Free State) cannot continue in isolation. A number of role players, for example, the Department of Higher Education, the Department of Justice and the Law Society of South Africa as well as all other law faculties and stakeholders are involved in the process. In this regard it was therefore not only heartening but a historic moment when stakeholders of the following entities met on 29 May 2013 for the LLB review summit:17 South African law faculties and law schools, the attorney’s profession, the bar, the judiciary, the Department of Constitutional Development and Justice and the Department of Higher Education and Training. To replace doctrinal modules with writing and other skills modules will have to fit in with the general move within legal education, the generic LLB and the LLB programmes of the different universities. Movement between universities or faculties must still be possible. Caution is called for against inadvertently reducing doctrinal modules in favour of skills modules, as basic legal skills simply cannot be

11 N Jenvey “Low-skilled Lawyers Prompt Class for Law Degree Reform” (15-06-2013) University World News Global Edition 276 <http://www universityworldnews com/article php?story=20130613155812925&mode> (accessed 19-06-2013); Schiess (2009) SU L Rev 1; SR Kedia “Redirecting the Scope of First-year Writing Courses: Toward a New Paradigm of Teaching Legal Writing” (2010) 87 U Det Mercy L Rev 147 148; N Brand “Legal Writing, Reasoning & Research: An Introduction” (1980) 44 Alb L Rev 292 292; MF Fitzgerald “What’s Wrong with Legal Research and Writing? Problems and Solutions” (1996) 88 Law Libr J 247 247

12 See for example V Frith “A Quantitative Literacy Course for Humanities and Law Students: The Challenges of a Context-based Curriculum” (2012) 30 PIE 41 41

13 Du Preez & Fossey (2012) SAJHE 34714 A Khan “A Compendium of Legal Writing Sources” (2011) 50 Washburn LJ 395 39515 In comparison, most USA law degrees are three year degrees and most include legal writing courses in

some form, but it is a post graduate degree16 For a discussion of legal education in South Africa, see Greenbaum (2012) Stell LR 32-3717 Sedutla (2013) De Rebus

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taught without a good theoretical base. Although legal writing modules are not traditionally part of the LLB curriculum, certain South African faculties have moved in that direction. The American experience, as well as that of the UFS, has shown that the labour-intensiveness of writing modules makes it difficult to get staff willing and frankly able to teach these modules. Greenbaum, in the context of noting the “underdevelopment” of legal education scholarship in South Africa, states that “limited attention is paid to pedagogical issues and educational research by legal academics who regard themselves, it would appear, in general, primarily as lawyers and not teachers…”.18

There are other challenges too that law faculties in South Africa face. In teaching substantive law and skills, the lecturer must also take into consideration the barriers to learning faced by students including lack of confidence; inexperience in tertiary education; inability to understand new concepts and how to communicate them; not knowing how to study a specific new body of knowledge; and disillusionment regarding their own abilities and skills.19 Students are not prepared for the demands of higher education, and lack basic reading and writing skills.20 It is therefore necessary that law teachers incorporate the teaching of basic legal writing skills into their various subjects. Unfortunately, the theory and practice of law have been separated in South African legal education, as in the United States of America (“USA”),21 and lecturers in doctrinal or black-letter law subjects find it difficult, unnecessary and time-consuming to incorporate legal writing exercises into their teaching. Skills, including writing skills, should however be taught in conjunction with and alongside theory. In the words of Robbins-Tiscione:

“[T]eaching practice without theory is as inadequate as teaching theory without practice.”22

Good legal writing (and many other legal) skills may very well be inculcated or reinforced in a broad spectrum of traditional theory or content-based/doctrinal subjects.23 Academics sometimes complain about law students’ failure to view the entire curriculum as an integrated process. Students tend to “compartmentalise” subjects, so that when one teaches the drafting of pleadings, for example, they often neglect to link or apply the theory they

18 Greenbaum (2012) Stell LR 32 19 TL Enns “Students Critiquing Novice Writing: Building Hope by Building Bridges” (2010) 48 Duq L Rev

403 405-41120 C Boughey “South Africa: University Students Can’t Read?” (30-08-2009) University World News 90

<http://www universityworldnews com/article php?story=20090827173247724&query=Boughey> (accessed 19-06-2013); C Boughey “Social Inclusion & Exclusion in a Changing Higher Education Environment” (2012) 2 Multidisciplinary J Educ Research 133 137-138

21 KK Robbins-Tiscione “A Call to Combine Rhetorical Theory and Practice in the Legal Writing Class Room” (2011) 50 Washburn LJ 319 319; R Posner “Legal Scholarship Today” (2002) 115 Harv L Rev 1314 1317; HT Edwards “The Growing Disjunction between Legal Education and the Legal Profession” (1992) 91 Mich L Rev 34 34-35 Also see WM Sullivan, A Colby, J Welch Wegner, L Bond & LS Shulman Educating Lawyers: Preparing for the Profession of Law Report of the Carnegie Foundation for the Advancement of Teaching (2007); K Holmquist “Challenging Carnegie” (2012) 61 J Legal Educ 353-378; LT McElroy, CN Coughlin & DS Gordon “The Carnegie Report and Legal Writing: Does the Report go Far Enough?” (2011) 17 J of the Legal Writing Institute 279-324

22 Robbins-Tiscione (2011) Washburn LJ 31923 See for example C McCreham-Parker “The Signature Pedagogy of Legal Writing” (2010) 16 Legal

Writing 463 467-469

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were taught in a wide range of theoretical, content-based or doctrinal subjects to the actual drafting (legal writing) process.

At many South African law faculties, including the one at UFS, aspects of what could constitute parts of a legal writing course are already included in the broad rubric of a subject known at the UFS as Legal Practice. These so-called skills courses have been designed and instituted at many law faculties for the very purpose of teaching effective advocacy, and, in many instances, have produced positive results. However, when teaching these skills courses, one realises that traditional theory subjects may also play a crucial role in achieving the ideals of teaching effective advocacy in a holistic manner. How this may be achieved, though, is a debate that is noticeably absent from the academic discourse on the general restructuring and transformation of the LLB curriculum.24

This failure to engage in a proper discourse on how to achieve integration of skills and content in the LLB curriculum means that opportunities with regard to the teaching or inculcation of many important legal skills through subjects that have traditionally conveyed theory of law alone are lost. After all, just as the teaching of legal skills requires foundational theoretical knowledge, so too the mastery of theory requires certain foundational skills. In the words of Du Preez and Fossey:

“Writing is essential for the understanding of academic concepts and theories.”25

This is also true of legal writing. Elton,26 in turn, argues that three student interests need to be served, namely the self-interest to pass examinations, the interest in the subject, and the interest in developing abilities that will remain valuable even after the completion of formal education. The ability to write effectively and efficiently is definitely a valuable skill, which is also required once formal education has been completed. In serving these interests, a number of abilities and/or skills are developed, such as the ability to analyse,27 synthesise, make judgments, and see a task through to its conclusion.28 According to Rombauer, legal writing develops and reinforces legal problem-solving skills and professional rhetorical conventions.29 Legal writing teaches students to think about a legal problem or issue in an integrated way. Botein also states that students must be taught “the vital lawyering skills of researching, synthesizing, and writing”.30 Du Preez and Fossey state that:

24 CF Swanepoel, MG Karels & IJ Bezuidenhout “Integrating Theory and Practice in the LLB Curriculum: Some Reflections” (2009) JJS 99 101

25 Du Preez & Fossey (2012) SAJHE 35626 L Elton “Research and Teaching: Conditions for a Positive Link [1]” (2001) 6 Teaching in Higher

Education 43 4727 See DT Ritchie “Using John Dewey’s Pragmatism Epistemology to Teach Legal Analysis and

Communication” (2012) 5 Crit 1-2728 Elton (2001) Teaching in Higher Education 4729 MD Rombauer “Regular Faculty Staffing for an Expanded First-year Research and Writing Course: A

Post Mortem” (1980) 44 Alb L Rev 392 392-39430 M Botein “Rewriting First-year Legal Writing Programs” (1980) 30 J Legal Educ 184 184

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“[It is] unrealistic to believe that after four years of study a student will have mastered academic writing in all its guises, but writing skills can be honed in with practice and will be beneficial for the rest of the student’s life.”31

Although Du Preez and Fossey refer to academic writing, the same applies to the specialised form of academic writing, namely legal writing.

Legal writing cannot only be left to develop or to be taught through practice in the profession. As Schiess states:

“[S]ignificant improvement in legal writing will be difficult if not impossible to achieve.”32

3 The current legal writing model used by the UFS Faculty of Law

3 1 Introduction

The current legal writing model used by the UFS Faculty of Law is in no way presented as the ideal. However, it does represent a genuine attempt within the parameters and constraints of the Faculty to achieve the best possible results. The main constraint is teaching legal writing to large classes.

The Faculty aims to teach students to be able (i) to determine the legal question/problem33 in a set of facts and then to capture that in a written problem statement; (ii) to determine the legal and other facts relevant to the legal problem and express these in writing; (iii) to undertake the required research to find the applicable law and sources of law; (iv) to use the correct and applicable authorities in the proper way; (v) to analyse both the problem and the authorities, apply the authorities to the problem, and explain this in writing; (vi) to use correct citation forms, placement and bibliography; (vii) to use correct grammar, spelling, style and punctuation; and (viii) to use the correct and appropriate legal terminology.34 Due to teaching load, large classes, time constraints and administrative duties, there is very little time for lecturers to pay enough attention to aspects such as grammar, spelling, style

31 Du Preez & Fossey (2012) SAJHE 35632 Schiess (2009) SU L Rev 1-21 where he lists nine factors why improvement will be difficult, namely: (i) the

writing high school and college students do are most often self-expression writing and knowledge-telling instead of analysis; (ii) legal writing courses must cover legal research, legal English, objective writing, legal analysis, persuasive written legal analysis with little time to focus on fine points and writing style; (iii) law schools do not adequately train students in legal drafting; (iv) lawyers imbibe poor writing from judicial opinions and other required readings; (v) lawyers rely on form documents that are poorly written; (vi) in legal analysis authorities are used superficially and in drafting agreements understanding of the transaction is limited; (vii) due to time pressure of law practice there is no revising and editing of writing to ensure a quality product; (viii) formal writing style that ignores audience needs; and (ix) many lawyers are complacent, believing their writing is above average or better

33 For a discussion of problem-based learning, see S Nathanson “Changing Culture to Teach Problem-solving Skills” (1996) 14 J Prof Leg Educ 143-158; LS Whiting “Breaking with Tradition: A Two-L’s Perspective on the Case Method” (2010) 3 Phoenix L Rev 381-387; K Winsor “Toe in the Bath Water: Testing the Temperature with Problem-based Learning” (1989) 7 J Prof Leg Educ 1-21; HJP Nuy & JHC Moust “Students and Problem-based Learning: How Well do they Fit In?” (1990) 8 J Prof Leg Educ 97-114; S Kurtz, M Wylie & N Gold “Problem-based Learning: An Alternative Approach to Legal Education” (1990) 13 Dalhousie LJ 797-816

34 This is based on the outcomes set out in Schiess (2009) SU L Rev 5

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and punctuation.35 It is also agreed in the Faculty that good legal writing is, as described by Osbeck, clear, concise and engaging.36

3 2 General features of legal writing courses/modules

Swanepoel and Snyman-Van Deventer37 refer to a number of questions that may be used in the design of a legal writing course, particularly in the South African context. These include questions as to the minimum level of language proficiency required,38 the ideal stage during the LLB at which the course should be introduced,39 the extent to which legal writing is to be reinforced in all doctrinal subjects,40 what should be included in the broad rubric of legal writing,41 and, lastly, the resources needed to design and offer the course.42

On a general note, Kedia lists three major features of legal writing that should be the focus of a legal writing course, namely legal problem-solving and issue spotting, legal organisation, and legal reasoning.43 According to Andersen, the objectives of a legal writing course should include analysis of the legal problem(s) (to be able to identify the significant issues and sub-issues, and to evaluate the relative significance of various issues), researching the law44 (to be able to identify and note the relevant statutes, cases and secondary material), and drafting the appropriate legal document.45 It is thus clear that a legal writing course must be designed to also teach critical-thinking skills that lawyers will require when representing their clients.46

3 3 ufs legal practice modules

3 3 1 Year 1/Legal Practice 1 (one-semester module presented over the first academic year: sixteen academic credits)

The module starts with an introduction to professional conduct and ethics. The writing component of this course then proceeds to deal with the analysis of legal texts on ethics and professional conduct by means of the

35 Also see Kedia (2010) U Det Mercy L Rev 15436 MK Osbeck “What is ‘Good Legal Writing’ and Why does it Matter?” (2012) 4 Dexel L Rev 417 41837 N Swanepoel & E Snyman-Van Deventer “The Need for a Legal Writing Course in the South African LLB

Curriculum” (2012) 33 Obiter 121 131-13338 13139 132 The authors propose that legal writing ought to be staggered from the first year of study40 132 The authors propose that all doctrinal subjects should contain a legal writing element41 132 The authors propose that, in devising legal writing courses, it ought to be decided from the start

whether legal drafting is included in legal writing They recommend a greater degree of consultation with the legal professions when a legal writing course is designed and implemented

42 133 The authors caution that cognisance must be taken of the United States law school experience, namely that “teaching legal writing is an extremely difficult type of teaching”

43 Kedia (2010) U Det Mercy L Rev 156-16244 CA Brock “The Legal Research Problem” (1975) 24 DePaul L Rev 827 83545 RW Andersen “Stating Objectives for a Legal Writing Course” (1980) 30 J Legal Educ 358 35946 Dickerson (2011) J of the Legal Writing Institute xlii

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FIRAC method.47 Students must then write an essay on a specific issue, for example the conduct of an attorney in a specific situation. Students must argue both sides of the argument. This is followed by preparations for a first-year intervarsity moot court competition held in October and hosted by the Faculty. All students are given the task to research and draft heads of argument for the purpose of presenting arguments to court. The legal problem for this assignment is selected from the law of persons and family law, since these subjects form part of the first-year programme at UFS, as in most other South African faculties of law. In what is generally a fairly time-consuming process, all students have to present their arguments, after which winners are chosen to represent the Faculty at the intervarsity moot court competition.

The main experiences of the lecturers in this module include (i) a lack of language proficiency among students, (ii) very large classes, which make the teaching of written and oral advocacy extremely challenging, (iii) complete ignorance of the stare decisis principles, which should have been taught and applied in the module known at the UFS as “Introduction to the Law”, and (iv) a lack of basic case strategy and the ability to identify “strong” and “weak” aspects of the case to be argued. In addition, this module is perceived by both students and faculty members as “less important” based on the academic credits it currently carries. There is also in our view, the perception, certainly in the South African context, that skills courses do not enjoy the same status as some of the more traditional, core doctrinal subjects.

3 3 2 Year 2/Legal Practice 2 (one-semester module presented over one semester in the second academic year: sixteen academic credits)

Since 2009, the module has been equally divided between an electronic legal research component and a writing component. At the outset, the writing component was not presented by the Faculty due to capacity constraints. In the initial 2009 model, a fair amount of time was dedicated to the annotation of legal texts, including the correct identification of the genre provided by means of substantiation, as well as the clarity, cohesion and persuasion displayed in different writing styles. A second, fairly large component was then dedicated to the identification of, and writing about, plagiarism.

The 2009 module was introduced as an experiment, but, in 2010, it was decided that, despite its academic merit, it was far too advanced for second-year law students. A tailor-made course for law students, presented by a lecturer from the Faculty, was identified as a better option and more suitable for the purposes of the Faculty. In 2010, funding was obtained from the University’s Foundation Grant with regard to students in the extended LLB

47 See D Guenther “FIRAC: An Elementary Approach to Legal Reasoning” Dave Guenther <http://www 100megsfree3 com/wordsmith/firacintro html> (accessed 08-10-2012) FIRAC is an acronym “for a five step analytical process that can be used to learn any law or determine whether any law has been violated Each letter represents one step of the process and the ideal order in which they should be performed” “F” stands for facts, the “I” stands for the legal issue raised, “R” stands for an accurate statement of the legal rule, “A” stands for the application of the legal rule to the facts, while “C” represents the conclusion

TEACHING (LEGAL) WRITING SKILLS 517

programme (those who, in terms of the UFS admission requirements for LLB, are considered to be underachievers, and who complete the LLB programme over a period of five years).

This module is designed to instruct students in basic writing skills by means of law-related subject content. To acquire and establish firmly the basic skills required of a law graduate, formal lectures, discussions of case law, group work, individual assignments and assessments are used. The following aspects of legal writing form part of the course: advising clients by means of written correspondence, advising clients per memoranda, the drafting of legal opinions, writing of letters of demand, drafting basic heads of argument and affidavits for motion procedure. Special attention is given to the use of plain language in writing;48 guidelines with regard to basic format/form, writing style, tone and aim of documents; rules to be applied in stating what is meant; persuasive legal writing, and summarising core content. Because of the benefits of the module, it was decided that all students and not only the students in the extended programme should take the module.

3 3 3 Year 3/Legal Practice 3 (two half-semesters: eight academic credits each in the third academic year)

In the first part of Legal Practice 3, students are prepared for writing their mini-dissertations, which is a compulsory requirement for the LLB degree. This mini-dissertation must be submitted towards the middle of the final year. Attention is paid to the referencing style as outlined in the Journal for Juridical Science (the Faculty’s in-house referencing style) as well as to the structuring of a law essay. As a formative method of assessment, students are asked to write an essay on a professional conduct and ethics topic, complying with a prescribed referencing style. These are evaluated by the lecturer and returned to the students for correction. Students are encouraged to interact with the lecturer in order to address shortcomings in their writing. The lecturers who have presented this course for a number of years regularly report back to the Faculty that the extent of writing deficiencies displayed by the majority of students is of great concern, to say the least. The main experiences in this course have been as follows:

(i) Students have little idea of how to structure a legal essay (which constitutes a primary component of legal analysis), despite the FIRAC exercise in the first year previously referred to in this article.

(ii) Many students exhibit poor grammar and vocabulary, in particular:

48 See for example Schiess (2009) SU L Rev 16-17; JR Forshey “Plain English Contracts: The Demise of Legalese” (1978) 30 Baylor L Rev 764 783; GD Gopen “IRAC, REA, Where are we Now, and Where Should we be Going in the Teaching of Legal Writing” (2011) 17 Legal Writing xxv xxxii; GD Gopen “The State of Legal Writing: Res ipsa loquitur” (1988) 86 Mich L Rev 333 380; DR Cohen “Competent Legal Writing – A Lawyer’s Professional Responsibility” (1999) 67 U Cin L Rev 491 501-504; BB Moore “Short and Plain Statements: A Pleading for Plain Language” (1986) 12 SU L Rev 47 56; JA Baker And the Winner Is: How Principles of Cognitive Science Resolve the Plain Language Debate Suffolk University Law School Research Paper No 11-33 (2011) SSRN <http://ssrn com/abstract=1915300> (accessed 23-08-2011) For a South African perspective, see SBO Gutto “Plain Language and the Law in Context of Cultural and Legal Pluralism” (1995) 11 SAJHR 311 317

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• overly long sentences;• punctuation (or lack thereof) that obscures meaning;• incorrect gender references;• incorrect use of tenses;• “poor” writing conventions, such as the inappropriate use of Latin

words and phrases;• verb confusion, with specific reference to law;• fragmented sentences;• incorrect use of conjunctions;• inability to use metaphorical language (mixed idioms); and• constantly reverting to “SMS language”.

(iii) When a law teacher evaluates an assignment specifically in terms of referencing and structuring, less attention is paid to substantive law, logic and innovative research. This is confirmed by colleagues in doctrinal subjects, who report that when marking 300 examination or test papers on substantive law, it is too time-consuming also to concentrate on good writing.49

(iv) Effective writing and oral advocacy can only be done by means of repeated practice. Hazard remarks as follows:

“The best way to learn to write has long since been proven: it is to write, over and over again, under the tutelage of a critical and patient editor. That is how it is done in eighth grade composition courses worthy of the name, in English 1A in college, in law review and other law school writing experiences, and in apprenticeship in law firms that care about writing and care to do something about it. Essentially the same method is required in learning the skill of public speaking.” 50

Experience has shown that this constitutes the real challenge of teaching effective writing. There simply is not enough time for a lecturer to read, edit and re-evaluate essays. This was put to the test with a class of 110 students in their third year, who were at the same time encouraged to make personal office contact with lecturers in order to discuss their writing and the shortcomings in their writing style. The lecturers’ workload simply did not allow it, and the one-on-one interactions did not necessarily produce the desired results. As Achtenberg explains:

“The written work-product requires close correction and one-to-one, oral teacher-student involvement. This is an extremely difficult type of teaching. It is very time consuming, enervating and sometimes fruitless. Experience indicates that the weaker the language skills and analytical abilities of the student, the more time the teacher must spend with him. Individual exercises are required. Often these exercises aim at correcting language defects.”51

Another inhibiting factor at the Faculty is that this module bears only half the academic credits of other doctrinal subjects, which creates the impression that Legal Practice is a less important “add-on” to the LLB

49 Written feedback on file with authors50 GC Hazard “Curriculum Structure and Faculty Structure” (1985) 35 J Legal Educ 326 33151 J Achtenberg “Legal Writing and Research: The Neglected Orphan of the First Year” (1974) 29 U Miami

L Rev 218 223

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curriculum, as previously alluded to in the description of the first-year module.

A possible solution (as has apparently been done at Vanderbilt and Yale universities)52 is to utilise the entire faculty with regard to which assessment of writing in a legal writing course should take place. Only a few students are placed with each lecturer in an attempt to even out the workload.

Upon completion of the second part of Legal Practice 3, students should be able to take proper instructions for the drafting of a will, identify various clauses in a will, and know how to draft those clauses. Students are also taught how to draft a basic contract. Both these exercises contribute to the development of not only legal skills, but especially legal writing skills, and the ability to apply these skills in a professional context, as required by the HEQF.53

3 3 4 Year 4/Legal Practice 4 (two half-semester courses over the fourth academic year: total of sixteen academic credits)

In Legal Practice 4, during the first semester, students are taught to conduct client interviews and counselling, write letters of demand, draft particulars of claim, draft pleas and counter-claims, draft founding and answering affidavits and draft bills of cost for taxation. (All of these aspects are also part of the clinical course, which runs concurrently with the lecture component.)

During the second semester, students study practical divorce law, with some focus (again supplemented by the concurrent clinical part of the course) on drafting particulars of claim, pleas and counter-claims in divorce actions, as well as drafting founding and answering affidavits in Rule 43 applications. The main experiences relating to both the students and the course itself include the following:

(i) Incorrect identification of audience with regard to style and use of words.(ii) Incomprehension of writing in either the first or third person.54

(iii) Lack of general language proficiency.(iv) Complete failure to recall, in particular, some basic theoretical principles

taught in the law of delict, the law of contract, the law of persons and family law. This substantiates the often-expressed complaint by lecturers that students perceive the law in terms of “compartments”.

(v) The inability to state facts succinctly.(vi) Too little time or academic credit is given to the courses in order to deal

with one aspect in detail.

52 A Boyer “Legal Writing Programs Reviewed: Merits, Flaws, Costs, and Essentials” (1985) 62 Chi-Kent L Rev 25 29

53 GN 928 in GG 30353 of 05-10-2007 2454 Sworn affidavits are written in the first person as a statement by the deponent This is in contrast to, for

example, particulars of claim which is drafted in the third person Students are confused as to when to use first and third person in drafting

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4 Specific exercises or ways to teach legal writing skills

In the given case of a law faculty that finds the introduction of a full-credit legal writing module into the LLB curriculum impossible due to the constraints mentioned thus far, the following proposals with regard to an alternative approach are made.55

4 1 written assignments

Writing skills may be taught by selecting a specific formative method of assessment. This can be illustrated by the following example: Civil Procedure, a fourth-year module at the UFS, is taught on campus as well as online (electronically via the internet). The choice of assessment is left to the lecturer, but a summative assessment by way of examination at the end of the semester is compulsory. For online modules, many lecturers have opted for formative assessment by way of online tests. In the Civil Procedure module, the formative assessment is done by means of two research assignments. The assessment criteria attach considerable weight (50%) to innovative research, logical writing and structure, and effective writing. The main finding in terms of the results of the summative assessment (examination), which invariably focuses more on content than research and writing skills, is that the online students achieve the same – if not higher – scores than the campus students with regard to content. This indicates that the hours spent on lecturing do not make any difference to the achievement of the students as opposed to allowing students to research and assimilate theoretical knowledge at their own pace. The level of innovation with regard to research conducted by students continues to impress, while it has the added value of assignments being mostly well written and coherently structured.

Research assignments, as an integrated model of teaching critical legal skills, are therefore a simple initial step in appealing to all traditional doctrinal academics to include effective, structured and logical arguments and writing as a substantial component of their assessment criteria.

The uptake of this proposal amongst colleagues at the UFS Faculty of Law is illustrated by the example of Legal History, a first-year course. In 2010, students were given a topic on which to write an essay for the final examination. Throughout the semester, they received guidance with regard to the content of the essay. The students not only learnt how to write an essay on a law topic, but, because they were forced to read through the prescribed material, they mastered the prescribed theory in the process. The lecturer reported to the Faculty that, even though he spent significantly more time on contact sessions with students, the result was worth it.

55 See JA Lynch Jr “The New Legal Writing Pedagogy: Is our Pride and Joy a Hobble?” (2012) 61 J Legal Educ 231 241-242 for another example of an alternative way to teach legal writing

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4 2 case law analysis and synthesis

Once students are able to achieve a certain standard of comprehension through language, the second key ability/competency required as a critical legal skill is the ability to analyse legal texts, which inevitably leads to logical thinking, structuring and, perhaps most importantly, solving legal problems. According to Boyer:

“Legal writing is the only course in which analysis is systematically taught; other courses hope that the student will learn analysis in the one-shot-only atmosphere of the examination room.” 56

It is important that students are taught to analyse facts and how to do it in writing.57 Various useful models have developed over the years.58 As previously mentioned, the UFS Faculty of Law currently uses a model expounded by, among others, Maisel and Greenbaum,59 which is referred to as the FIRAC ( facts, issue, legal rule, application and conclusion) method of legal analysis. Strong,60 in turn, expounds the CLEO (claim, law, evaluation and outcome) method for the writing of legal essays and exams. However, regardless of the actual name of the method of analysis, it is imperative that some method is used to lay the foundation for legal analysis. Furthermore, it is important that all members of faculty are made aware that even though this method is taught to first-year students, it may equally be applied by students in any theory-based subject in order to solve or analyse legal problems.

One particular method that is simple and easy to use is a reported judgment with a majority and minority judgment, which requires students to argue and substantiate their preferences between the majority and minority judgment.61

Again, indications are that the quest for integrating doctrinal knowledge and legal skills is slowly materialising, as reported by a colleague in the third-year Business Entities course.62 This module deals in the first semester with the law of partnership, close corporations, business trusts and stokvels. Students are given an assignment to be handed in as part of their formal test. The assignment is included in the test paper. Students are required to summarise five prescribed judgments on different aspects of the law of business entities. After reading through the judgment, they should apply the FIRAC method to the case, which includes the identification of facts related to the case as well as a summary of the case, the identification of the issue or legal question of the case as well as a summary or reformulation thereof in their own words, and the identification of the relevant law applicable to the case as well as a critical illustration of the way in which the law was applied to the facts of the given case.

56 Boyer (1985) Chi-Kent L Rev 2557 Feerick (1994) Fordham Urb Law LJ 38258 For a discussion and criticism of these methods, see Gopen (2011) Legal Writing xvii-xix; Kedia (2010) U

Det Mercy L Rev 150-151, 169-17659 P Maisel & L Greenbaum Introduction to Law and Legal Skills (2001) 95 60 SI Strong How to Write Law Essays and Exams (2006) 1 61 For a discussion of the case method in legal writing pedagogy, see Kedia (2010) U Det Mercy L Rev

165-168; Whiting (2010) Phoenix L Rev 381-38762 Written feedback on file with authors

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Another pedagogy that may be employed in the development of critical analysis (and which may also be used for a module on comprehension) is to take legislation or parts thereof and ask students to “redraft” these in a more comprehensible manner, or to explain what they actually mean. In the third year module on tax law, a colleague used the definition of “gross income” in the Income Tax Act 58 of 1962 not only as a means of teaching very important terminology related to the specific subject, but also as a way of teaching the skills required to read, interpret and summarise a definition of more than 30 pages in length. Through this exercise, students learnt how to write the definition in a shorter, more comprehensible manner and, at the same time, grasped some important doctrinal theory on the subject. Thus integration of legal skills and theory was achieved.

4 3 summary of legal texts

The example mentioned above in respect of analysing legal texts applies equally to summarising legal texts. Linked to the proper comprehension and analysis of legal texts is a lawyer or law student’s ability to summarise such texts as briefly yet as comprehensively as possible. This ability helps to lay the essential foundation for writing legal opinions and, in particular, heads of argument.

The ability to use words sparingly and to “cut to the bone” when dealing with a legal problem is an essential skill for any legal practitioner. Again, this can only be achieved if a certain level of language proficiency is attained. Thus, while students in a course or module on legal analysis should be afforded greater leeway to express themselves (and, as secondary outcome, to come to grips with legal language), the next step is to teach the ability to summarise a legal text in a clear and succinct manner.

An innovative method (which illustrates how skills and theory can be integrated) used by a colleague in the first-year module on Legal History is to take a lengthy letter written in 1889 by the then Chief Justice of the Union of South Africa to AG McGregor, later Attorney-General of the Free State, stating the Union’s need to establish a central court of appeal, as the basis for an assignment that requires the students to summarise the content of the letter in one paragraph.63 In the process, the first-year students gain additional exposure to important legal principles, such as the principle of a fair trial.

In the second semester of the third-year module Law of Business Entities, students are required to complete ten assignments of two pages each on different aspects of company law. In each assignment, the students are required to read and summarise specific prescribed material. Students must therefore, for example, summarise a twenty-page article or a judgment of 50 pages or more in the required two pages. Thus, the assignment serves a dual purpose: The student must read the prescribed material, and also learns the important skill of summarising different legal texts. However, the lecturers of this module have decided to limit the assignments to five assignments only,

63 EA Walker Lord De Villiers and his Times, South Africa 1842-1914 (1925) 111

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because it is too time consuming to mark and give good, timely feed-back on ten assignments of two pages of more than 150 students.

4 4 mini-dissertation

Research forms an integral part of developing good legal skills and in particular of legal writing as an integral part thereof. Legal research in some form should undoubtedly be included in the LLB curriculum with legal writing. Currently, LLB students at the UFS Faculty of Law are required to submit a mini-dissertation in their final year to complete the LLB degree. The mini-dissertation must be submitted during the second semester of the final year. In the previous year or third year of the LLB in Legal Practice 3, students are prepared for the writing of an effective dissertation. Colleagues from the various departments64 are invited to submit research topics in their various fields of expertise. These are then distributed among the students to select their preferred topic. The evaluation criteria for the mini-dissertation, shown below, were designed and explained to both students and members of faculty:

Research preparationAttended all the preparatory lectures on legal research Yes/NoResearch proposalResearch proposal submitted as part of the RPK322 module. Failure to do so will result in an incomplete semester mark for that module.

Yes/No

Study leader consultationConsulted with the lecturer elected as a study leader?At least one consultation before submitting the research proposal. At least four more consultations before submitting the final mini-thesis.

Yes/No

Mini-thesisCompleted to the satisfaction of the study leader/assessor and the external moderator. No more than 20 pages in length. The alloca-tion of marks with regard to the following criteria:

Marks

PresentationPresentation of the works (research proposal included): language and application of the prescribed formats and style of referenc-ing (including contents, division, footnotes, bibliography, visual impression).

Max 20

ResearchAbility to collect appropriate sources. Use of sources.(Way in which sources were selected and used).

Max 40

ContentExposition and interpretation of the topic (use of material, struc-ture, clarity, relevance, sense, ability to argue and draw logical conclusions).

Max 40

TOTAL 100

64 At the UFS it is the Departments of Mercantile Law, Private Law, Law of Criminal Procedure and Law of Evidence, Criminal Law, and Constitutional Law and Legal Philosophy

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Students in their third year are required to register a title for their mini-dissertation (as a compulsory part of Legal Practice 3), which includes an initial consultation with the lecturer who has been appointed as supervisor, as well as the submission of a research proposal completed according to the prescribed format.

The main experience with regard to the completion of the mini-dissertations (apart from the writing deficiencies mentioned previously) is that, unless the designated supervisor insists on strict adherence to the minimum number of five consultations, students tend to submit their mini-dissertations even though, by the due date, their texts actually still require a substantial amount of corrections.

Finally, all mini-dissertations that attain 75% or higher automatically qualify for publication in the Faculty’s student law journal, Mediatationes Medii.

4 5 moot courts

An important ability/competency for law students and legal practitioners is the presentation of a persuasive legal argument. There have been meaningful attempts to address the teaching of persuasion, or persuasive legal argumentation, at most South African faculties of law, mainly through the presentation of moot and mock trial assignments and participation in national and international mock/moot trial competitions. The UFS Faculty of Law participates in the All-African Moot Court Competition, the annual Willem C Vis International Commercial Arbitration Moot, the LexisNexis National Mock Trial Competition and the UFS First-Year Moot Court Competition. In fact, the very existence of these activities has sensitised the Faculty to students’ lack of the core abilities and competencies needed to be an effective legal practitioner. Moot court teaches students not only the verbal communication skills required to present a persuasive legal argument, but writing skills as well.

Of course, as with writing, the practical problem relating to oral advocacy training is that it requires repeated practice, which makes it very labour-intensive and time-consuming. Participation in national and international mock/moot court competitions is generally very expensive, and only a relatively small number of students are exposed to, and benefit from, them. Yet, moot and mock trial competitions are not the only manner in which to teach these skills. In the quest for the integration of legal skills and theory, a method that was used in the subject Legal Philosophy may be cited as an example of an alternative way to achieve such integration. Students were asked to deliver short oral presentations in class, which then counted towards their semester mark. Therefore, students had to work through the prescribed material, identify the important issues and write a summary, which then served as the basis for the oral presentation.

As a means of overcoming the limitations of moot/mock trial competitions, which allow only a limited number of students to be exposed to the invaluable benefits these competitions offer, the UFS Faculty of Law devised and instituted

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the UFS First-Year Moot Court Competition some six years ago. During its preliminary rounds, this competition takes place in the Free State High Court and is presided over by legal professionals, including lecturers. During the final rounds, which take place in the Supreme Court of Appeal, it is presided over by retired and serving judges from both the Free State High Court and the Supreme Court of Appeal. However, all first-year students in Legal Practice 1 are given the set of facts, following which they are expected to research and prepare heads of argument. All students are thus required to write the heads of argument. All students are then required to present their arguments, and participants are selected to represent UFS. In this way, the benefits of the competition are shared by all first-years. However, the competition and participation therein is expensive and extremely labour-intensive.

In addition, third-year and fourth-year LLB students may take part in the annual Willem C Vis International Commercial Arbitration Moot. This competition is aimed at teaching students methods of alternative dispute resolution. Students learn two crucial aspects of dispute resolution through arbitration, namely the preparation of memoranda for the claimant and the respondent, and presenting oral arguments before an arbitral tribunal. Students write two memoranda of approximately 35 pages each, which must then be verbally defended in only 30 minutes. The problem is always based on a breach of contract in a transaction relating to the sale of goods under the United Nations Convention on Contracts for the International Sale of Goods and other uniform international commercial law, which is to be settled through arbitration under specified arbitration rules. A different set of arbitration rules is used each year. The writing of the memoranda requires students to determine the problem and the question of law, as well as the applicable legal principles. It teaches the students not only how to write the memorandum for both the claimant and the respondent, but also how to argue both sides of the dispute.

What is significant about the Willem C Vis competition is that lecturers in doctrinal subjects, who are traditionally removed from the task of teaching legal skills, have joined hands and are demonstrating that the integration of legal skills and theory is the shared responsibility of the entire Faculty.

5 Conclusion

Literature concerning current trends in foreign schools of law, especially in the USA, reveals the standard inclusion of a comprehensive course in legal writing in the law degree programme in respect of the legal profession. Generally, South African faculties of law have not yet followed suit. To a certain degree, the inclusion of certain skill courses (at the UFS called Legal Practice) in the South African LLB four-year curriculum, as well as the inclusion and validation of clinical legal courses, laid the foundation for the development of legal writing courses in the LLB programme. Schiess is correct in asserting:

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“[L]egal writing programs should continue to focus on written legal analysis – intensely and thoroughly – and should also include mandatory instruction in legal drafting.”65

Legal writing can contribute to a better understanding and knowledge of the traditional doctrinal or black-letter law subjects and should be integrated with it. If not, there must at least be a link between the legal writing assignments in the legal writing modules and the work done in the doctrinal subjects. Alignment is vital.

In view of (i) the South African legal profession’s rightful claim of co-ownership of the content of the LLB programme, (ii) the South African Qualifications Authority’s apparent preference for skills transfer as opposed to exclusive theory transfer, (iii) the need for law faculties to meet practice demands, the inclusion of a full-credit course in legal writing has become imperative in redesigning the LLB curriculum. Therefore, considering the general under-preparedness of students to study law, this note proposes the “staggered” introduction of components of legal writing into the LLB curriculum. The work done in the UFS Legal Practice modules as well as in specific modules by individual lecturers serves as an example of how legal writing can be integrated in the LLB programme.

SUMMARY

Legal writing as a subject has been largely absent from the South African undergraduate LLB curriculum, despite the fact that every legal practitioner needs to be accomplished in the art of legal writing in some or other form. Literature on current trends in foreign schools of law reveals that a complete or stand-alone course in legal writing is, as a standard procedure, included in the law degree programme. Even though some South African law faculties are yet to respond to this trend, others – including the Faculty of Law at the University of the Free State (“UFS”) – have slowly started to include aspects of a potential legal writing course in the broad rubric of a subject known at the UFS as Legal Practice, with some positive results. However, in teaching these courses, it has become apparent that – apart from “practical skills” modules – traditional theory subjects could also play a crucial role in achieving the ideals of teaching effective advocacy in a holistic manner. The debate on how this may be achieved is however noticeably absent from the academic discourse on the general restructuring and transformation of the LLB curriculum. The steps taken by the UFS Faculty of Law to address the teaching vacuum in respect of legal writing and other critical skills are presented in this article. It is aimed at stimulating debate among South African legal academics on the establishment of legal writing courses as core modules in the LLB curriculum. It concludes that, in view of the general under-preparedness of students to study law, the “staggered” introduction of components of legal writing into the LLB curriculum can possibly provide some solutions.

65 Schiess (2009) SU L Rev 23

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