Elevators and Artichokes: The Basic Errors in Law School Term Paper Writing

Posted by Jeff Lipshaw

I have just gone through a difficult session reviewing a student’s “directed study” term paper.  It was odd to hear a statement to the effect that “I was a good writer before I got to law school, but legal writing screwed me up.”  I can still remember vividly sitting in a small section of my sophomore year U.S. history survey course at the University of Michigan (circa 1973), and the teaching fellow (to become lifelong friend and widely-acclaimed historian and gerontologist) W. Andrew Achenbaum describing what we were to do when we wrote the three five page papers that were required for the course.  “A history paper,” Andy said, “is like a legal brief.”  Well, at age nineteen, I had no clue what that meant, but I do now.  You make an overall assertion – the thesis statement – then supply supporting arguments that are backed by the historical evidence.  (Note: just to make me feel really old, the other grader on the papers was Andy’s best friend and fellow TF, Jan Lewis, the mother of current New York Law School prof James Grimmelmann.)

So, students, when you write those papers to fulfill your writing requirement, it’s barely a leap from brief writing to expository prose.  And consider what I pointed out in this instance as deficiencies on at least three levels:

The “Elevator Speech” Failure:  This is the basic compositional and organizational failure.  I can barely read your paper because I have no clue from section to section, paragraph to paragraph, and sentence to sentence, why I am reading what I’m reading.  Before you start writing you should have an outline in mind, and it’s not just a placeholder for the data you’ve collected.  No, it’s the elevator speech – the argument you make if you get on the elevator at the ground floor and have to present your conclusion in the ninety seconds or so it takes you to get to the fiftieth floor.  It sounds something like this:  “My main point is that the adoption of the Omnibus Garbage Collection Act is going to have unintended adverse consequences that outweigh the purported benefits.  I have three points in support of that position.  One, the benefits are grossly overstated (see supporting evidence).  Two, the recognized consequences are understated (see supporting evidence).  Three, there are additional consequences that have yet even to be recognized in the debates (see discussion by renowned garbage theorists).  Four, there are ways of ameliorating these consequences to improve the legislation (see my proposals).  Conclusion:  The current legislation should be scrapped in favor of my proposal.  Thank you very much.  Here’s your floor.”

The “Peeling the Artichoke” Failure:  You skimmed over the top and never dug deep enough into the materials.  Rather than actually reading the statutes and cases, you relied on commentary you pulled out of law reviews, or worse, Wikipedia.  As a result the paper is replete with basic errors simply because you were not thorough.  Modern manufacturing methods have a problem solving technique called the “5 Whys.”  When you think you’ve hit pay dirt as to the cause of a problem, you ask “why” about that cause, and repeat it five times until you’ve asked five whys.  In my metaphor, it’s peeling the artichoke of an issue, digging deeply, questioning every source until you’ve gotten to something that may not be the bottom, but it’s a helluva lot better than the superficial place you started.

The “Presentational” Failure:  I hate to be a pedant, but remember when you write that there’s a reader on the other end of the process.  Misspellings, typos, incorrect citation forms, sentences with mixed tenses are all distractions, and suggest that sloppy form means sloppy substance.  One particular peeve of mine:  I’ve started to resign myself to the use of “they” to refer to a single entity like, for example, General Electric Company.  I think GE is an “it”, not a “they,” but, as I said, I’m something of a pedant.  But, damn it, if you are going to use the “they”, do it consistently, and don’t be switching from “it” to “they” and back from sentence to sentence.

One last thought.  This may be a generational thing.  The internet gives us unlimited access to data.  Students have told me they get overwhelmed with the amount of articles, materials, etc.  Information isn’t knowledge, and knowledge isn’t exposition.  Once you’ve gathered the data, put it aside.  Close the door.  Clear your mind.  Write your elevator speech.  Create an outline based on the elevator speech.  Then use the data to support the points in the outline.  Trust me.