The Phenomenology of Error in Legal Writing - Washburn University ...

Articles
PHENOMENOLOGY OF ERROR IN LEGAL
WRITING
Aida M. A/aka"
"There is nothing wrong with this sentence, it makes sense."\
"I can't figure out what the attorney is trying to say.,,2
The two lines above, the first from a student, the second from a
judge, convey the diametrical views of many legal writers and their
readers. The student's mystification over why his legal writing
instructor criticized his writing is typical ofthe students who participated
in a qualitative study regarding the phenomenon of error in legal writing.
The study provides the basis for this Article, which focuses on
connecting legal writing instructors with their students and enhancing
the way that law professors, judges, practitioners, and students
comprehend the prevalence of basic writing errors in legal writing. By
* Associate Professor of Law, Washburn University School of Law, Topeka, Kansas.
J.D. Loyola University Chicago School of Law; B.A. University of Wisconsin-Madison. I
thank Bradley Borden, Michael Hunter Schwartz, Tonya Kowalski, Kristen Gerdy, and
members of the Legal Writing: Journal of the Legal Writing Institute editorial board for their
supportive and insightful comments on earlier drafts of this Article. I thank my research
assistant Laura Younker for her able assistance and my faculty assistant Penny Fell for
transcribing hours of recordings. I also thank my husband John Rury for his unflagging
support, help, and encouragement. I especially thank the ten students who agreed to
participate in this project and openly discuss their experiences with me. Without them, this
project would not have been possible.
\. Interview with Conrad, Student, Washburn University School of Law, in Topeka,
Kan. (Aug. 3, 2007) [hereinafter Second Interview with Conrad] (transcript at II, on file with
author).
2. Interview by Bryan A. Garner with Honorable Dan Aaron Polster, U.S. District
Judge for the Northern District of Ohio, available at http://www.lawprose.org (select
"Interviews" tab; then follow "Judges, Lawyers" hyperlink; then follow "Hon. Dan Aaron
Polster" hyperlink).

2 QUINNIPIAC LAW REVIEW [Vol. 28:[
focusing on students, this study reveals that many writing education
practices, though well grounded in theory, fail to achieve desired results.
Thus, it helps to bridge the gap between theory and practice, and
between student and instructor perceptions, providing insights for those
in the legal academy, bench, and bar who are interested in improving
law-school graduates' writing skills. It demonstrates that current
methods of legal writing instruction may be insufficient to cure chronic
basic-skill errors.
I. BACKGROUND
Although complaints about legal writing are longstanding, 3 the last
fifty years have witnessed the widespread institutionalization of law
school legal writing courses 4 and a conscientious effort to rid legal
writing of stilted language in favor of "plain English."s Despite this,
however, many lawyers still do not write well. 6
In a 2001 survey of
state and federal judges, practicing attorneys, and legal writing
professors, nearly 94% of respondents reported dissatisfaction with the
basic writing skills exhibited in briefs and memoranda, and over 57% of
3. See, e.g, Debra R. Cohen, Competent Legal Writing-A Lawyer's Professional
Responsibility, 67 U. CIN. L. REv. 491, 493-94 (1999).
4. In 1947, the Association of American Law Schools formally recognized legal
writing as a law school subject and by 1950 over forty law schools provided introductory legal
writing courses. David S. Romantz, The Truth About Cats and Dogs: Legal Writing Courses
and the Law School Curriculum, 52 U. KAN. L. REv. 105, 130 (2003); see also Cohen, supra
note 3, at 515-16. Most law schools today require two-semester, first-year programs, though
some schools require four and even six-semester legal writing courses. See ASS 'N OF LEGAL
WRJTING DIRS. LEGAL WRJTING INST., 2008 SURVEY RESULTS 7 (2008), available at
http://www.alwd.org/surveys/survey _results/2008_Survey _Results.pdf [hereinafter SURVEY
RESULTS]; Cohen, supra note 3, at 515-16 (noting that most law schools "require only two
semesters oflegal writing").
5. E.g, Cohen, supra note 3, at 499-500; Bryan A. Gamer, Judges on Effective
Writing: The Importance ofPlain Language, 84 MICH. B.I. 44 (2005) (collecting comments);
George D. Gopen, The State ofLegal Writing: Res Ipsa Loquitur, 86 MICH. L. REV. 333, 334
(1987) (quoting Robert W. Benson, The End ofLegalese: The Game is Over, 13 N.Y.U. REV.
L. & SOc. CHANGE 519, 531 (1985». Some authors trace the genesis of the "plain English"
movement in the law back to over 100 years ago, though it did not start gaining momentum
until David Mellinkoff's The Language of the Law was published in 1963. See Judith D.
Fischer, Why George Orwell's Ideas About Language Still Matter for Lawyers, 68 MONT. L.
REv. 129, 132, 134 (2007).
6. Steven Stark, Comment, Why Lawyers Can't Write, 97 HARV. L. REV. 1389, 1389
(1984); Leigh Jones, Lawyers' Writing Skills Still Bad, NAT'L L.J., May 12, 2008, at I,
available at http://www.law.com/jsp/nljlPubArticleNLJ.jsp?id= 1202421250266 (assessing the
role of technology on the writing skills oflawyers).

2009] PHENOMENOLOGY OF ERROR
respondents indicated that recent law school graduates write poorly. 7
The respondents identified deficiencies in style and substance, as well as
in basic writing principles, clarity, and overall organization. 8
The survey data also showed, however, that legal writing
instructors teach what the bench and bar consider the critical elements of
good legal writing. 9 Thus, the researchers suggested "a disconnect
between the pedagogy in writing classes and the results that
professionals in the field see."IO Moreover, the respondents identified
writing deficiencies in practicing attorneys that are evident in the writing
of first-year law students. ii
While teaching first-year legal analysis, research, and writing
courses (LARW),12 I have been perplexed by the repetition of errors that
I observe in students' writing. Though I anticipate the lack of clarity
that sometimes results from the struggles of a new legal analyst, the
persistent repetition of what I believe to be more easily correctable
7. Susan Hanley Kosse & David T. ButieRitchie, How Judges, Practitioners, and
Legal Writing Teachers Assess the Writing Skills of New Law Graduates: A Comparative
Study, 53 J. LEGAL EDUC. 80, 85-86 (2003).
8. Id. at 85-87 (noting that stylistic problems included wordiness, passive voice,
sloppy language, and the overuse of quotations; substantive problems included failure to grasp
issues, lack of focus, insufficient research, improper references to facts and law, and failure to
prove a point; and basic skills problems included errors in grammar, punctuation, and
spelling). In an interesting article, Professor Judith Fischer cataloged courts' reactions to
different types of attorney error, including poor writing. Depending on the egregiousness of
the writing problems, court sanctions can range from rebuke to dismissal ofpleadings. Judith
D. Fischer, Bareheaded and Barefaced Counsel: Courts React to Unprqfessionalism in
Lawyers' Papers, 31 SUFFOLK U. L REV. 1,9-13 (1997).
9. Kosse & ButieRitchie, supra note 7, at 91-92.
10. Id. at 91. In a survey of federal judges regarding how lawyers write, twenty-one
percent, thirty-nine percent. and twenty-six percent rated lawyers' skills poor to fair in
mechanics, style, and tone, respectively. See Kristen K. Robbins, The Inside Scoop: What
Federal Judges Really Think About the Way Law)"ers Write, 8 LEGAL WRITING: J. LEGAL
WRITING INST. 257, 276 (2002).
II. Kosse & ButieRitchie, supra note 7, at 92.
12. Because analysis is necessarily a part of the legal research and writing process,
Washburn's first-year writing course is titled "Legal Analysis, Research and Writing" and will
be referred to in this Article by the acronym "LARW." When I use the generic short form
"legal writing" to describe the discipline, I imply the related concept of analysis. See, e.g.,
Jane Kent Gionfriddo, The "Reasonable Zone of Right Answers ": Analytical Feedback on
Student Writing, 40 Go'Jz. L. REv. 427 (2005) (discussing the role of legal writing courses in
teaching legal analysis); Susan E. Provenzano & Lesley S. Kagan, Teaching in Reverse: A
Positive Approach to Ana(vtical Errors in IL Writing, 39 Loy. U. CHI. L.J. 123, 127-28
(2007) (noting that "[d]ecades removed from its original status as a legal bibliography course,
legal writing has evolved into a sophisticated discipline focused on teaching 'thinking' and the
fundamentals of legal analysis"); Romantz, supra note 4, at 139 (noting the importance of
legal ""Titing courses to teaching reasoning and analysis).
3

4 QUINNIPIAC LAW REVIEW [Vol. 28:1
errors is especially troublesome. In the second half of a two-semester
sequence of courses, for example, I find myself reviewing many of the
technical, stylistic, formal, and substantive aspects of writing that I
addressed during the first semester. Some of the problem areas are
perhaps unique to legal writing. Some errors, however, are arguably
characteristic of problematic writing generally. Included in the latter
category are such technical and style errors as the overuse of the passive
voice and nominalizations, as well as punctuation, word choice, and
sentence structure issues I addressed in the classroom and in comments
throughout the year. Moreover, they factored in the grades I assigned.
What I observe in my legal writing classes is certainly not unique J3
and is undoubtedly caused by complex factors, some of which are
beyond the students' conscious control. 14 With legal education reform
gaining some traction nationally, however,15 insight into why poor legal
writing skills persist despite the increased professionalism of legal
13. See infra note 20. Among the most common stresses that legal writing instructors
report about commenting on student papers is the "irritation with students who ignored their
specific remarks made either in class or in previous comments." Jessie C. Grearson, From
Editor to Mentor: Considering the Effect of Your Commenting Style, 8 LEGAL WRITING: J.
LEGAL WRJTING INST. 147, 167 (2002). Regarding the experience of reading first-year legal
writing papers, one long-time legal writing instructor observed, "the deficiencies in
understanding what constitutes an effective analogy were dwarfed by the glaring and
horrendous number of basic writing errors that appeared in all too many of the papers. These
students, you suddenly realize, don't know how to write l " Edward H. Telfeyan, The
"Grammar Bee "-One Way to Take the Pain Out of Teaching the Mechanics of Writing, 17
PERSP.: TEACHING LEGAL REs. & WRJTING 25, 25 (2008).
14. According to some authors, causes relating to the weakness in law students' writing
abilities include the lack of writing experience in law schools, the absence of continuing
education courses relating to writing skills. and the impact of technology. Kosse &
ButieRitchie, supra note 7, at 93; Jones, supra note 6 (assessing the role of technology on the
writing oflawyers).
15. Criticism of legal education, though not new, has received more attention lately
following the publication of several books and articles related to legal education and the
efforts of several law schools, including Harvard, to revamp their curricula. Two of the most
recent and well-known critiques of legal education are Roy STUCKEY ET AL, BEST
PRACTICES FOR LEGAL EDUCATION: A VISION AND A ROAD MAP (2007) and WILLIAM M.
SULLIVAN ET AL, EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW
(2007). For additional perspectives on legal education reform, see Laurel Currie Oates, Did
Harvard Get it Right?, 59 MERCER L. REV. 675 (2008); Edward Rubin. What's Wrong with
Langdell 's Method, and What to Do About It, 60 VAND. L. REv. 609 (2007). For more about
Harvard Law School's education reform, see Harvard Law School, HLS faculty unanimously
approves first-year curricular reform,
http://www.law.harvard.eduJnews/2006/10106_curriculum.php (last visited July 9, 2009). For
a blog focusing on the best practices for legal education and legal education reform, see Best
Practices for Legal Education, http://bestpracticeslegaied.albanylawblogs.org (last visited July
9,2009).

20091 PHENOMENOLOGY OF ERROR 5
writing programs 16 and the efforts of legal writing instructors would
seem to be critical if law schools wish to reassess legal education and
guide professional development. 17
This Article reports the reflections of ten students who participated
in individual interviews after their first year of law school regarding
"technical errors" in writing. 18 Because legal writing instructors expend
a great deal of effort commenting on student writing, I sought
information regarding how students experienced and reacted to the
critiques they received on writing assignments throughout their first
year; that is, whether and how their instructors' comments actually
guided the students' revision process. What the students revealed helps
to illuminate why the phenomenon of error persists in legal writing and
demonstrates that factors both outside of and within students' control
underlie it. This Article suggests that many of the theories articulated in
the literature on critiquing student papers may not always hold up in
practice and may explain why some legal writing instructors perceive
their comments to be ignored.
16. According to the 2008 national survey of legal writing programs, the number of
schools employing tenure-track professors or instructors hired to teach legal writing on longterm
contracts is steadily increasing while those employing part-time or adjunct instructors are
decreasing. SURVEY RESULTS, supra note 4, at 6. Tenure-track programs, however, are in
the minority. /d.; see also N. William Hines, Ten Major Changes in Legal Education over
the Past 25 Years, ASS'N AM. L. SCHOOLS, Aug. 2005, at I, available at
http://www.aals.orgidocuments/aals_newsletter_aug05 .pdf (listing the "Professionalization of
Legal Research and Writing Instruction" as sixth out of the "ten most important" changes in
legal education since 1980). Despite these trends, however, the 2008 results of the annual
Law School Survey of Student Engagement, released on January 7, 2009, "show nearly half of
all law school students reporting that their education does not 'contribute substantially' to
their ability to 'apply legal writing skills' in the real world." David Moltz, Writing Lags in
Law Schools, INSIDE HIGHER ED., Jan. 7, 2009, available at
http://www.insidehighered.comlnews/2009/01/07 (follow "Writing Lags" hyperlink).
17. Because the professionalism of legal analysis, research, and writing programs has
followed a shallow trajectory, Phillip C. Kissam's 1999 criticism of the academy's views
towards such programs is as relevant today as it was when he wrote it. For more information
on Kissam's criticism, see Phillip C. Kissam, Lurching Towards the Millennium: The Law
School, the Research University, and the ProfeSSional Reforms ofLegal Education, 60 OHIO
ST. L.1. 1965, 1986-92 (1999).
18. The study this Article is based on addressed deficiencies in basic writing skills,
rather than in analysis or research.

6 QUINNIPIAC LAW REVIEW [Vol. 28:1
II. STUDEl'OT PERSPECTIVES ON THE PHENOMENON OF ERROR
A great deal of scholarship has focused on the theoretical and
practical considerations attendant with commenting on student papers. 19
Less has focused on why students repeat errors that instructors have
pointed out to them,20 and a paucity of empirical research exists to
explain the phenomenon. 21 This Article addresses that oversight by
reporting empirical findings and examining a range of issues that prior
studies of student success in legal writing courses have not explored
from the students' perspectives.
A. Methodology ofthe Study
My research entailed a limited qualitative empirical study in the
phenomenological tradition 22 focused on factors that influenced
students' ability or inability to overcome their weaknesses. Although
empirical research generally, and qualitative research specifically, are
commonplace in education research,23 little exists in the field of legal
19, See infra, Section IV.
20, But see Laurel Currie Oates, [ Know That [ Taught Them How to do That, 7 LEGAL
WRITING: J. LEGAL WRITING INST. I (2001); Emily Zimmennan, The Proverbial Tree Falling
in the Legal Writing Forest: Ensuring That Students Receive and Read Our Feedback on
Their Final Assignments, II PERSP,; TEACHING LEGAL RES. & WRITING 7 (2002).
21. But see Anne Enquist, Critiquing Law Students' Writing: What the Students Say is
Effective,2 LEGAL WRITING: J. LEGAL WRITING INST. 145 (1996), In her study. Professor
Enquist asked five legal writing instructors to comment on the trial and appellate briefs of four
second-year students anonymously submitted in their Persuasive Writing and Oral Advocacy
course and then had the students evaluate the comments for effectiveness,
22, Phenomenology has been defined as "the study of structures of experience, or
consciousness, Literally, phenomenology is the study of 'phenomena': appearances of things,
or things as they appear in our experience, or the ways we experience things '
Phenomenology studies conscious experience, , , from the subjective or first person point of
view." David Woodruff Smith, Phenomenology, in STANFORD ENCYCLOPEDIA OF
PHILOSOPHY (Edward N. Zalta ed., 2(09), http://plato,stanford.eduientries/phenomenology.
Although debates exist regarding the use of the tenn, phenomenologists generally emphasize
subjective aspects of people's behavior. ROBERT C. BOGDAN & SARI KNOPP BILKEN,
QUALITATIVE RESEARCH FOR EDUCATION: AN INTRODUCTION TO THEORY AND METHODS,
21-22 (3d ed, 1982). Phenomenological interviews place the participants' experiences in
context and provide the opportunity for participants to reflect on those experiences. IRVING
SEIDMAN, INTERVIEWING AS QUALITATlVE RESEARCH 11 (2d ed. 1998).
23. Empirical research is generally categorized as quantitative or qualitative, though
much research has elements of both. See EMANUEL J. MASON & WILLIAM J. BRAMBLE,
RESEARCH IN EDUCATION AND THE BEHAVIORAL SCIENCES, CONCEPTS AND METHODS 38
(1997). A quantitative approach to research "uses measurement and statistical principles and
models" often found in the research of natural and physical scientists. [d. Quantitative
research "involves quantification of the phenomena under study," [d. Texts providing

2009) PHENOMENOLOGY OF ERROR
education. 24 Qualitative research collects and analyzes nonstatistical
data using methods such as interviews, case studies, ethnographic field
work, and comparative historical analysis, and is not reliant on gathering
systematic information from a large number of cases. 25 Because
qualitative research is particularly appropriate for decoding and
interpreting the meaning of observable phenomena,26 the persistence of
certain errors, for example, such a study is particularly appropriate for
understanding the "disconnect between the pedagogy in writing classes
and the results that professionals in the field see."27
In most cases, student-oriented feedback regarding the effectiveness
of their instructors' pedagogical methods is limited to the end-ofsemester
student evaluations, and those are unsuited to the task of
discovering how students respond to and use comments and what factors
affect their use. Additionally, educators "cannot observe behaviors that
took place at some previous point in time,,,28 that is, when students sat
down to revise their work, presumably with instructor comments in
sight.
To determine the degree to which student attitude and behavior
account for the persistence of technical writing errors in legal writing, it
was critical to talk to the students. Because I wanted to ensure an
assistance in designing, implementing, and assessing qualitative research studies include:
BOGDAN & BILKEN, supra note 22; JACK R. FRAENKEL & NORMAN E. WALLEN, How TO
DESIGN AND EVALUATE RESEARCH IN EDUCATION (6th ed. 1990); SEIDMAN, supra note 22;
Robin A. Boyle & Joanne Ingham, Suggestions on How to Conduct Empirical Research: A
Behind-the-Scenes View, 15 PERSP.: TEACHING LEGAL REs. & WRITING 176 (2007).
24. See generally Richard K. Neumann, Jr. & Stefan H. Krieger, Empirical Inquiry
Twenty-Five Years After the Lawyering Process, 10 CLINICAL L. REV. 349 (2003) (noting the
general lack of empirical research in clinical legal scholarship and discussing how to
effectively use empirical methods). In many ways, the legal writing community has
spearheaded much empirical research. Examples of the scholarship resulting from this
research include: Leah M. Christensen, Legal Reading and Success in Law School: An
Empirical Study, 30 SEATTLE U. L. REV. 603 (2007); Ian Gaiiacher, "Who Are Those Guys? ":
The Results ofa Survey Studying the Information Literacy ofIncoming Law Students. 44 CAL.
W. L. REV. 151 (2007); James B. Levy, As a Last Resort, Ask the Students: What They Say
Makes Someone an Ejlective Law Teacher, 58 ME. L. REv. 49 (2006); Laurel Currie Oates,
Leveling the Playing Field.' Helping Students Succeed by Helping Them Learn to Read as
Expert Lav.:vers, 80 ST. JOHN'S L. REV. 227 (2006); Susan M. Provenzano & Lesley S. Kagan,
Teaching in Reverse: A Positive Approach to Analytical Errors in IL Writing, 39 Loy. U.
CHI. LJ. 123 (2007).
25. Neumann & Krieger, supra note 24, at 353.
26. Id.
27. Kosse & ButleRitchie, supra note 7, at 91. See supra note IO and accompanying
text.
28. FRAENKEL& WALLEN, supra note 23, at 455 (quoting M.Q. PATTON, QUALITATIVE
EVALliATION AND RESEARCH METHODS 278 (2d ed. 1990)).
7

8 QUINNIPIAC LAW REVIEW [Vol. 28:1
unbiased sample, I sought to interview students of each of Washburn's
four, full-time, tenure-track LARW instructors. I solicited volunteer
participants by sending an email to the students who took LARW in the
2006-2007 academic year-the entire 2006 matriculating lL class. 29
After explaining the purpose of the study, the email requested volunteers
who would self-identify as:
First: Students who have demonstrated little significant
improvement in writing grammar, style, form, or legal analysis with
respect to weaknesses identified by their LARW professors, or who feel
that they did not make as much progress as they would have liked to
have made.
Second: Students who have demonstrated improvement in writing
grammar, style, form, or legal analysis with respect to weaknesses
identified by their LARW professors, or who feel like they have made
great progress in addressing writing weaknesses.
Ultimately, I ended up with ten volunteers, all of whom believed
they fell into the second category. Three had been my students. Once
the students agreed to participate in the study, I obtained copies of their
graded work product. By reviewing their instructors' margin and endcomments,
and any other directed feedback, I identified specific
weaknesses in the students' early work, which was a closed
memorandum. I then reviewed their remaining work for the semester
and the year to determine whether specific comments were repeated
and/or whether the same weaknesses were present. I discovered that,
while students appeared to resolve certain problems, many of the errors
that their instructors commented on early in the year also surfaced in
their later work.
After reviewing their work, I conducted one to three interviews
with each of the students, utilizing primarily unstructured, open-ended
questions designed to encourage the students to candidly reflect on their
conduct and experience. 30 I spent an average of three hours with each of
the studentsY
29. This study required obtaining the approval of Washburn University's Internal
Review Board, which oversees human-subject research.
30. Interested individuals may contact the author for the actual interview guides.
31. The interviews were audio-recorded, transcribed in full, and later indexed around
certain questions. I then analyzed students' responses individually and collectively.

2009] PHENOMENOLOGY OF ERROR
Adopting expert techniques for phenomenological investigation,32 I
focused the first interview on background information, such as where
they attended high school and college, how much writing they had done
in high school, college, and at work, and what they could remember
about the type and quantity of feedback they received on their writing
assignments. Additionally, I asked students to reconstruct their
experiences learning grammar, punctuation, and writing skills.
Background questions also included how they felt about writing, how
they assessed their writing skills before attending law school, and how
they perceived the importance of writing to the legal profession. Thus,
the first interview was designed to uncover the students' broad
experiences and perceptions with respect to writing and to provide
context for their law school experiences.
The second interview focused on eliciting information regarding
how the students reacted to and used the comments they received during
their revising process. I also wanted to know whether the students
reviewed the comments they received in the first semester while they
worked on their second semester assignments and whether their use of
the comments changed over time. Finally, I asked students to reflect on
how they addressed specific errors, whether they felt equipped to
confront their particular weaknesses in the future, and what they would
do differently ifthey could act with the benefit ofhindsight.
AU of the students were candid and forthcoming. They appeared as
open to discussing their weaknesses as their strengths. The information
recounted in this Article is aimed at providing insight into the students'
perceptions about legal writing, their writing skills, and their use of
instructor feedback. It also provides details about some of the students'
background characteristics and historical writing experiences so that
readers have some context for the students' perspectives.
32. "A researcher undertaking a phenomenological study investigates various reactions
to, or perceptions of, a particular phenomenon. . .. The researcher hopes to gain some insight
into the world of his or her participants .... Data are usually collected through in-depth
interviewing." FRAENKEL & WALLEN, supra note 23, at 436. Some experts on
phenomenological research advocate a series of three interviews; the first to establish the
relevant context of the participant's experience, the second to allow the participants to put
their experience in that context, and the third to encourage the participants to reflect on the
meaning of the experience. See SEIDMAN, supra note 22, at 11-13. Although] usually
conducted two interviews, several students' interviews took three sessions to complete.
Additionally, two students preferred to sit for only one session, thus limiting the background
information I obtained from them. Individual interviews took from about one-and-a-half
hours to almost four hours to complete.
9

10 QUINNIPIAC LAW REVIEW [VoL 28:1
B. Student-Participant Backgrounds
Of the ten students I interviewed, six were men, four were women,
and their ages ranged from 23 to over 50. Their educational
backgrounds were evenly distributed between public and private
schools. The single most popular area of undergraduate study was
political science, which four of the ten students majored or minored in.
Table I summarizes the information obtained in the first background
interview regarding the participants' education background.

2009] PHENOMENOLOGY OF ERROR
TABLE I: THE PARTICIPANTS' EDUCATION BACKGROUNDS
Student
"Name,,33
Andrew 34
Betsy 35
Conrad 36
David 31
Emill 8
Frank 39
George 40
RJulie
K-12
Education
Type of
College
College
Major
Suburban/Public Public Business Mgmt.
II
Second Major, Minor,
or Other Degree
Urban/Public Public Political Science l\,f, l\Aedia
Urban/Public &
RurallPublic Public Political Science .... blic Admin.
UrbanlPublic &
Private Private Gov't.
Suburban/Public Private Political Science I French/African Studies
UrbanlPrivate
Suburban/Public Private English
Rural/Public For Profit Info. Sys. Masters Business Admin.
rhanlPublic
Public Criminal Justice Psychology
For Profit Business Mgmt.
Private History Political Science
33. To preserve the students' anonymity, I have assigned each a pseudonym.
34. Interview with Andrew, Student, Washburn University School of Law, in Topeka,
Kan. (July 20, 2007) [hereinafter First Interview with Andrew] (transcript at 1-7, on file with
author); Interview with Andrew, Student, Washburn University School of Law, in Topeka,
Kan. (July 24, 2007) [hereinafter Second Interview with Andrew] (transcript at 1, on file with
author).
35. Interview with Betsy, Student, Washburn University School of Law, in Topeka,
Kan. (July 20, 2007) [hereinafter First Interview with Betsy] (transcript at 1,10, on file with
author).
36. Interview with Conrad, Student, Washburn University School of Law, in Topeka,
Kan. (July 27, 2007) [hereinafter First Interview with Conrad] (transcript at I, on file with
author).
37, Interview with David, Student, Washburn University School of Law, in Topeka,
Kan, (Aug. 10, 2007) [hereinafter First Interview with David] (transcript at 1-2, 5-6, on file
with author).
38. Interview with Emily, Student, Washburn University School of Law, in Topeka,
Kan. (Aug. 17,2007) [hereinafter First Interview with Emily] (transcript at 1-2,12-13, on file
with author).
39. Interview with Frank, Student, Washburn University School of Law, in Topeka,
Kan. (Aug. 21, 2007) [hereinafter First Interview with Frank] (transcript at 1-2,7, on file with
author).
40. Interview with George, Student, Washburn University School of Law, in Topeka,
Kan. (Aug. 31, 2007) [hereinafter First Interview with George] (transcript at 1, 5-6, on file
with author).
41. Interview with Helena, Student, Washburn University School of Law, in Topeka,
Kan. (Sept. 11,2007) (transcript at 1, on file with author).
42. Interview with Ike, Student, Washburn University School of Law, in Topeka, Kan.
(Sept 12,2007) [hereinafter First Interview with Ike] (transcript at 1, 5-6, on file with author).

12 QUINNIPIAC LAW REVIEW [Vol. 28:1
The participants' college writing experiences varied somewhat.
Table 2 summarizes what the students reported regarding how much
they wrote in college and whether their professors commented on their
writing skills. Most reported writing at least short papers in almost all of
their classes, while a couple wrote very few papers. Only two reported
receiving regular comments on their basic writing skills. The students'
education background did not seem to influence how effectively they
used instructor comments or approached revision generally, although
their prior academic writing experiences affected their confidence in
their writing abilities positively.44
I was also interested in knowing how much recreational reading
they engaged in during college. As the table indicates, several students
rarely read non-assigned texts.
TABLE 2: THE PARTICIPANTS' COLLEGE WRlTlNG & READING EXPERIENCES
Comments Regarding Recreational
Basic Skills Reading
Yes Almost None
Only Two Professors Yes
In English Composition Yes
None
Yes
e Yes
No Information
Some Almost None
In Almost All Classes Few No Information
43. Interview with Julie, Student, Washburn University School of Law, in Topeka, Kan.
(Oct. 17,2007) (transcript at 1, on file with author).
44. See infra Section III. B.
45. First Interview with Andrew, supra note 34 (transcript at 9-11, 13-14).
46. First Interview with Betsy. supra note 35 (transcript at 11-12, 15).
47. First Interview with Conrad, supra note 36 (transcript at 5-6,13-14).
48. First Interview with David, supra note 37 (transcript at 6, 8-9); Interview with
David, Student, Washburn School of Law, in Topeka, Kan. (Aug. 13, 2007) [hereinafter
Second Interview with David] (transcript at 2-3, on file with author).
49. First Interview with Emily, supra note 38 (transcript at 13, I5-17).
50. First Interview with Frank, supra note 39 (transcript at 8-1 I, 18-20).
5 I. First Interview with George, supra note 40 (transcript at 6-8).
52. Interview with Helena, supra note 41 (transcript at 2-4).
53. First Interview with Ike, supra note 42 (transcript at 6-9).
54. Interview with Julie, supra note 43 (transcript at 1-4).

14 QUINNIPIAC LAW REVIEW [Vol. 28:1
Though some of the students were recent college graduates, most
had worked before attending law school. Writing, however, was a
significant aspect of their work experience in only a few cases. Table 4
summarizes the information obtained during the background interviews
regarding the participants' work-related writing experiences.
For the most part, students' occupational writing experiences had a
neutral to positive effect: their successes at work and the absence of
negative responses to their writing provided them with a self-assurance,
which their early legal writing experiences later somewhat mitigated. 66
Only David's supervisors had provided him with detailed critical
feedback on his writing. This negatively influenced his perception of his
writing abilities but positively influenced his use of his instructor's
comments. 67 Those who lacked post-graduate writing experience
viewed that deficiency as a hurdle to overcome, but most did not
recognize the difficulty of doing SO.68
66. See infra notes 109-111 and accompanying text.
67. See First Interview with David, supra note 37 (transcript at 10).
68. See infra notes 107-108 and accompanying text.

16 QUINNIPIAC LAW REVIEW [Vol. 28:1
instructors differed in their commenting styles, and the students varied in
their ages and backgrounds, the interviews revealed certain common
themes. In particular, the study suggests that students may:
1. underestimate the importance of writing skills to law
practice;
2. be confident about their writing skills;
3. make limited use of instructor comments because they
a. assume that instructors comment on every error
and expect the instructors to edit their work,
b. approach revising their work mechanically and not
reflectively,
c. do not substantially change their use of comments
over time, and
d. fail to properly conceptualize legal writing;
4. not, for the most part, consciously use written feedback to
improve themselves as writers and may not know how to
do so;
5. exhibit poor self-efficacy skills by ignoring references to
helpful secondary sources to improve their writing; and
6. rely too heavily on one-on-one conferences.
At the same time, these students took the comments seriously and
wanted to improve their performance. Rarely did nonchalance or apathy
appear to dictate their behavioral choices. Instead, confusion over
instructor expectations and time-management issues associated with the
I L experience, affected some of their conduct.
The purpose of this Article is not to offer comprehensive solutions;
rather, it is to provide a rare insight into law-student behavior and the
perceptions that influence it. Although one must be careful not to
generalize too much from a qualitative study such as this one,79 the
information these students shared may illuminate what instructors,
practitioners, and others interested in legal education have observed in
the writing of their students and other lawyers. I hope that the
information spurs dialogue among interested educators regarding how to
address writing skills within their institutions.
79. The need to limit generalizations is "almost inevitable given the nature ofqualitative
research. . .. It is the practitioner, rather than the researcher, who judges the applicability of
the researcher'S findings and conclusions." FRAENKEL & WALLEN, supra note 23, at 440.

2009] PHENOMENOLOGY OF ERROR
A. Estimation ofthe Importance ofWriting
Interested in whether student perceptions may have shaped their
attitudes toward their legal-writing assignments, I asked students
whether they believed that writing skills were important when they first
entered law schooL Few of these students entered law school aware of
the primary role of written communication in law practice. Student
interviews revealed that, while a few had worked in law-related
positions or had other exposure to the law, their perceptions regarding
the importance of writing was largely unrelated to whether they had any
prior legal experience. As Ike said: "[M]y impression of lawyers was
reading and oral arguments-Iot[s] of research. . .. The actual writing
requirement hadn't even really crossed my mind."so Similarly, Betsy
knew that she would have to do a lot of reading and memorizing, but did
not think that she would be expected to do a lot of writing. SI
Despite her law-firm experience, Julie had never thought about
writing from "the perspective of 'I'm a lawyer, what do I do every
day?",82 Frank, on the other hand, knew that law required writing from
his paralegal studies and from his work in the records department of a
large law firm. 83 Notwithstanding his basic understanding and work
experience, however, because he could not observe what lawyers did to
produce well-written documents, he had not understood how much effort
those documents represented. 84
Even Conrad, who had been involved in pro se litigation and
administrative appeals, some of which required briefing, was not aware
of the essential role of writing to the practice oflaw. He reported that:
[W]riting has always been important in whatever I did, but I think in my
concept of lawyering, it was more, make a presentation in trial ... being able
to think on your feet and to counter the other side's arguments.... I thought it
80. First Interview with Ike, supra note 42 (transcript at 12). The other students who
had had no prior legal experience expressed similar sentiments. Andrew did not know what to
expect. First Interview with Andrew, supra note 34 (transcript at 15); Emily had no
impression regarding the degree to which writing skills would be important. Interview with
Emily, Student. Washburn University School of Law, in Topeka, Kan. (Aug. 30, 2007)
[hereinafter Second Interview with Emily] (transcript at I, on file with author). George
"didn't understand the magnitude of its importance." First Interview with George, supra note
40 (transcript at II).
81. Second Interview with Betsy, supra note 57 (transcript at 1).
82. Interview with Julie, supra note 43 (transcript at 6).
83. Second Interview with Frank, supra note 61 (transcript at 2).
84. Jd.
17

2009] PHENOMENOLOGY OF ERROR
nothing more important in my opinion.... [T]his is what you'll
basically be doing every day.,,91
Only one student's summer experience diminished his impression
of the fundamental importance of writing skills. The attorney Ike
worked for, and intended to work for upon graduation, did not
"demand ... perfection" from him or convey interest in "anything that
[he] learned in LARW as long as [he] can dictate what the problem is."n
By the fall of his second year, Ike's interest in developing his writing
skills was therefore more a matter of pride than necessity. As he
explained:
To me, that will always be important because that's just how I am. I like to not
only speak clearly, I like to be able to write clearly .... I want ... [readers of
my work] to think welI of me before they meet me. . .. Even on the micro
level I try to do it how it is supposed to be done. [The attorney I work for] stilI
finds that agitating, but I don't want to throw everything I've learned out the
door.93
The fact that the attorney Ike worked for did not value good writing
may diminish his motivation over time. Such negative influences from
supervisors may exert pressure on young lawyers to abandon the effort
to improve their skills and account for some of the observed dichotomy
between the skills legal writing instructors teach and those that lawyers
display.
Although experience eventually illuminated or reinforced the
importance of writing skills for most of these students, the message
came too late to influence their approach to the LARW course.
Students' earlier misperceptions had filtered and minimized the
significance of legal writing and, thus, their approach to acquiring one of
the core competencies of legal education was often unproductive.
This finding is consistent with constructivist learning theory, which
posits that students bring to educational experiences their own ideas, into
which they integrate any new information provided in the classroomthat
"students' beliefs affect their choices of strategies, which, in tum,
affect learning outcomes.,,94 Included in those ideas may be
91. Second Interview with George, supra note 62 (transcript at 10-11).
92. Third Interview with Ike. supra note 64 (transcript at 1-2).
93. Id. (transcript at I).
94. Ellen Lavelle & Nancy Zuercher, The Writing Approaches of University Students,
42 HIGHER EDUC. 373, 374 (200 I). A consensus among constructivists is that "learners arrive
at meaning by actively selecting, and cumulatively constructing, their own knowledge,
through individual and social activity. The learner brings an accumulation of assumptions,
19

20 QUINNIPIAC LAW REVIEW [Vol. 28:1
misconceptions regarding specific subject matter, 95 what their
instructors expect of them when writing,96 or other misunderstandings
that impede the learning process. 97 As research on misconceptions
demonstrates, these impressions originate in previous experience, and
can be finnly held, shared with others, and resistant to change. 98 The
present study supports this research. It confinns that many law students
enter law school with misconceptions regarding their own writing
abilities and the importance of writing skills to law practice. Because
these false impressions are not usually articulated, they are all the more
impervious to change. Not surprisingly then, for these students, new
work-related experiences influenced their views more than what their
instructors may have said.
B. Self-Perception ofWriting Abilities
For those students who wrote in connection with their pre-Iawschool
work, few had received significant feedback on the technical
aspects of their writing. 99 As a result, one overarching similarity among
motives, intentions, and previous knowledge that envelopes every teaching/learning situation
and detennines the course and quality of the learning that may take place." John Biggs,
Enhancing Teaching Through Constructive Alignment, 32 HIGHER Eouc. 347, 348 (1996);
see also Joan Garfield, How Students Learn Statistics. 63 INT'L STAT. REv. 25,25-26 (1995).
See generally Gavriel Salomon & David N. Perkins, Individual and Social Aspects of
Learning. 23 REv. REs. Eouc. I (1998) (exploring the social and cultural aspects oflearning
and the interrelationship of individual and social learning).
95. See generally, e.g., Ross H. Nehm & Leah Reilly, Biology Majors' Knowledge and
Misconceptions ofNatural Selection, 57 BIOSCIENCE 263 (2007) (exploring the phenomenon
ofmisperceptions among biology majors).
96. See Velda McCune, Development of First- Year Students' Conceptions of Essay
Writing, 47 HIGHER Eouc. 257,258 (2004) (noting that researchers have identified a "lack of
congruence between students' conceptions of essay writing and what was expected in their
disciplines" in psychology, education, sociology and biology students and suggesting that
students "may remain wedded to inappropriate conceptions" because those conceptions
influence how they interpret advice they are given).
97. See generally, e.g., John P. Smith, III et aI., Misconceptions Reconceived: A
Constructivist Analysis of Knowledge in Transition, 3 J. LEARNING SCI. 115 (1994)
(examining the role of misconceptions in the learning process and their implications for
teaching).
98. See id. at 119-21.
99. First Interview with Andrew, supra note 34 (transcript at 14-15); First Interview
with Betsy, supra note 35 (transcript at 16); First Interview with Conrad, supra note 36
(transcript at 11); First Interview with George, supra note 40 (transcript at 9). Frank's
supervisor occasionally rearranged sentences but his work was usually approved as written.
First Interview with Frank, supra note 39 (transcript at 16). Ike's work was revised for
content but not grammar. First Interview with Ike, supra note 42 (transcript at 8). Julie

22 QUINNIPIAC LAW REVIEW [Vol. 28:1
also said, "[I was] pretty concerned about my grammatical abilities
because I do know that I have weaknesses concerning that kind of
stuff. . .. They pretty much let you run amok in college in writing. In
my experience, nobody really was throwing a fit about my grammar." 104
Conrad was also self-confident. He "thought [his writing skills]
were pretty good. . .. [C]ollege was so easy and [he] was so used to
knocking out A's without really studying that hard." I05
Andrew expressed similar sentiments:
I thought I was an okay writer. I thought I was always decent at being able to
write a paper and not just have it loaded with errors and tough to read. I didn't
ever think I was a great writer or anything like that but I always thought I was
an okay writer and could make clear ideas and clear papers that could be
read.... [W]riting a paper always came fairly easy for me and I always ended
up Wit . h satIslactory . c: gra d es on everyt h'mg. 106
When asked how difficult he thought legal writing would be,
Andrew replied, "I didn't think that I would have difficulty with it. I
definitely figured that there would be a few things to learn about it and
how to be proper yet direct." 107
Emily, who had been out of school for several years, had some
concerns about returning to writing after such a long hiatus: "[I thought
that writing] would be like riding a bike-that I haven't done it, but I
used to be very good at it, but I haven't had an occasion to write, so
when I do it turns out well, but I have to work really hard at it." lOS
Students with prior occupational writing experience largely derived
confidence from that experience. Ike had had a particularly positive
occupational writing experience: "After getting published nationally and
internationally with [my company], being commended for my
communications skills, presentation skills, writing skills-I wrote a lot
of articles that got published in the [company] magazine. . .. I was very
confident with my ability to write when I got here." 109
Frank was also comfortable with his writing abilities because his
law-firm supervisors gave him good feedback and entrusted him with
104. Id. (transcript at 17-18).
105. First Interview with Comad, supra note 36 (transcript at 18­19).
106. First Interview with Andrew, supra note 34 (transcript at 15). According to
Andrew, most of the feedback he received on his college papers focused on grammar and
punctuation. Id. (transcript at 12-13).
107. Second Interview with Andrew, supra note 34 (transcript at 2).
108. First Interview with Emily, supra note 38 (transcript at 18).
109. First Interview with Ike, supra note 42 (transcript at 11).

2009] PHENOMENOLOGY OF ERROR 23
writing projects that required "a good writing style."IIO Although he did
not believe his writing skills were "spectacular," George, too, "thought
he was fair." III Because of his writing experience, he "thought [he]
could string some sentences together without a problem." 112
Only two students believed that they were poor writers when they
entered law school.
David reported:
I didn't feel like I was [a good writer]. To this day, I still think I'm a mediocre
writer. . . . I feel like I'm somewhere between average and above
average .... I don't think I was such a good writer. I was constantly getting
C pluses and Bs on college papers and as final grades. I feel like I'm a good
writer, but I know that there are a lot ofpeopJe out there that are better. I 13
Helena stated: "I don't think I was very good at [writing]. ...
Because I haven't ever had very much experience writing in general. I
don't know the rules of ... grammar and all that stuff-before I came
here.,,114
Regardless of the root of the students' somewhat contradictory
assessment of their writing skills, two themes emerged. First, some of
the students entered law school believing that they had weak technical
skills, particularly with respect to their proficiency in grammar and
punctuation. Second, in some students' views, technical deficiencies
were not a barrier to good performance.
The students' confidence in their writing abilities was not reflected
in their first-semester performance. As Table 5 demonstrates, most of
these students earned below average grades at the end of the first
semester. 115 One of the interesting exceptions was David, who believed
he was a poor writer and came to law school, in part, to improve that
skill.
110. First Interview with Frank, supra note 39 (transcript at 16).
1 I 1. First Interview with George, supra note 40 (transcript at 10).
112. Id
113. First Interview with David, supra note 37 (transcript at 15).
114. Interview with Helena, supra note 41 (transcript at 4).
liS. Because of small LARW class sizes, Washburn's LARW grading guideline has a
range of2.95-3.05, which is higher than the guidelines for other classes.

24 QUINNIPIAC LAW REVIEW [Vol. 28:1
TABLE 5: PARTICIPANTS' FIRST-SEMESTER PERFORMANCE COMPARED TO ASSESSMENT OF
WRITING SKILLS AND PERCEPTION OF IMPORTANCE
First Semester Assessment of Perceived
Student Name LARWGrade Skills Importance
Andrew 116
B+ "Okay" No Idea
Betsy 117
"Pretty Good" No Idea/Had Not
C Thought About It
"Pretty Good" No Idea/Had Not
ConradI 18 C Thought About It
David I 19 A "Average" Important
"Very Good" but No Idea
E mly '1 120 C Rusty
Good Somewhat
Frank 121 C+ Important
George 122
Helena 123
"Fair" Somewhat
C+ Important
C+ Not Very Good Important
"Very Confident" No Idea/Had Not
Ike 124 B- Thought About It
"Pretty Good" No Idea/Had Not
Julie 125 B Thought About It
The influence of the "grammar wars" in English education may be
evident in the students' perceptions. Many students enter law school
today without much formal instruction on technical writing skills. Some
of these students have been educated during an era marked by
pedagogical debate over whether grammar, spelling, and punctuation
should be taught as separate subjects or solely within the context of
reading and writing. Teachers of English and the language arts have
116. First Interview with Andrew, supra note 34 (transcript at 15).
117. Second Interview with Betsy, supra note 57 (transcript at 5).
118. Second Interview with Conrad, supra note 1 (transcript at 12).
119. First Interview with David, supra note 37 (transcript at 5).
120. First Interview with Emily, supra note 38 (transcript at 18); Second Interview with
Emily, supra note 80 (transcript at 9).
121. First Interview with Frank, supra note 39 (transcript at 6).
122. First Interview with George, supra note 40 (transcript at 10); Second Interview with
George, supra note 62 (transcript at 6).
123. Interview with Helena, supra note 41 (transcript at 5, 16).
124. First Interview with Ike, supra note 42 (transcript at 11, 15).
125. Interview with Julie, supra note 43 (transcript at 5).

2009] PHENOMENOLOGY OF ERROR
been engaged in the "grammar wars" and "punctuation wars" since the
early 1980s and the controversy continues to rage. 126 As a result, some
of today's students may well have had little formal education in
punctuation, grammar, or certain style considerations. Ike, for example,
"had never heard passive versus active prior to coming [to law
school]. ... [He] didn't learn first person, third person until [he] was in
[his] first year of college. Never touched those again, ever.,,127
Additionally, like many law students, the study participants
received little or no meaningful feedback on their writing during
college. 128 As Table 2 illustrates, few of the participants regularly
received feedback on their basic writing skills. Some received
corrections but no comments or suggestions for change, and they were
rarely penalized for errors. Thus, for some students, the fact that
previous assessments had not penalized weak grammar and punctuation
skills may have influenced their views. For example, although Julie
could recall instances when her instructors would correct grammatical
126. In 1985, the National Council of Teachers of English (NTCE) atlinned
the position that the use of isolated grammar and usage exercises not supported by
theory and research is a deterrent to the improvement of students' speaking and
writing and that, in order to improve both of these, class time at all levels must be
devoted to opportunities for meaningful listening, speaking, reading, and writing;
and ... urge [ d] the discontinuance of testing practices that encourage the teaching
of grammar rather than English language arts instruction.
National Council of Teachers of English, Resolution on Grammar Exercises to Teach
Speaking and Writing, http://www.ncte.orglpositions/statements/grammarexercises
(last visited on July 10, 2009); see also, e.g., Patrick Hartwell, Grammar, Grammars, and
the Teaching ofGrammar, 47 C. ENGLISH, 105, 105 (1985) (addressing "the grammar issue"
and compiling sources on both sides of the debate regarding the etlicacy of teaching
grammar); Constance Weaver, Teaching Grammar in the Context of Writing, ENG. J., Nov.
1996, at 15, 15 (noting that "it can be ditlicult for community members and English teachers
alike to believe what decades of grammar studies tell us: ... the teaching of grammar does not
serve any practical purpose for most students"); Thomas Bertonneau, Phonics, "Whole
Language," and Literacy: The Alphabet and American Education, MICH. EDUC. REP., Winter
2000, at 10, available at http://www.educationreport.org/archives/2000/mer2000-0I.pdf. But
see Ed Vavra, On Not Teaching Grammar, ENG. J., Nov. 1996, at 32,32 (claiming that "many
teachers are not aware that the anti-grammar research is simply not valid").
127. Third Interview with Ike, supra note 64 (transcript at 12). Comparing his education
with his sister's, who is three years older, Ike perceived that "the concepts of correct
punctuation and correct writing weren't as narrowly focused upon:' First Interview with Ike,
supra note 42 (transcript at 5).
128. See, e.g., Susan C. Wawrose, Students' Writing Backgrounds: A Survey, SECOND
DRAFT, Dec. 2003, at 6, 6, available at
http://www.lwionline.orglpublications/seconddraftldec03.pdf (reporting survey results
showing that law students receive little or no feedback on their writing in college and arguing
the need for more writing experiences in law school).
25

26 QUINNIPIAC LAW REVIEW [Vol. 28: I
errors, she could not remember when an instructor's message was,
"[M]an, [Julie], I would have given you an 'A' but you got a 'B' instead
because of all these grammar errors." 129 She recalled writing a two-page
book review for a history class in which she misspelled Frederick
Douglass' name throughout the paper. I3O Although her instructor
corrected the error each time it appeared, her grade did not reflect it. 131
The students' writing experiences must be viewed against
pedagogical trends rejecting explicit grammar and punctuation
instruction. If the theory is that students will develop the skills through
reading and writing, and if the reality is that they do not read or write
extensively and basic skills are not consistently addressed throughout
their education, the students' perception of the importance of such skills
and of their abilities is understandable. Additionally, national studies
have raised the alarm regarding the writing abilities of college
graduates. 132 The general decline in reading, writing, and research skills
necessarily affects the weaknesses in legal writing and analysis that law
professors, practitioners, and judges observe. 133
C. Reactions to Instructor Comments
Legal writing instructors differ in the form, subject matter, and
quantity of feedback they provide. 134 Washburn faculty members were
no different in that the level and detail of commentary varied by
129. Interview with Julie, supra note 43 (transcript at 3).
130. !d. (transcript at 3-4).
13 L ld.
132. See generally. e.g., NAT'L CTR FOR EDUC. STATISTICS, U.S. DEP'T OF EDUC.,
NATIONAL ASSESSMENT OF ADULT LITERACY: A FIRST LOOK AT THE LITERACY OF
AMERICA'S ADULTS IN THE 21ST CENTURY 15 (2005) (Table 8) (reporting the results of
studies demonstrating declining adult literacy rates), available at
http://nces.ed.govINAALlPDF/2006470_I.PDF. For a short summary of the report, see Sam
Dillon, Literacy Falls for Graduates from College. Testing Finds, N.Y. TIMES, Dec. 16,2005,
at A-34. Negative signals foreshadowing the skills of college and post-graduates are
indentified as early as middle school. For example, a recent study by ACT found that only
20% of American eighth graders are currently on track to be academically prepared for
college. ACT, THE FORGOTTEN MIDDLE: ENSURING THAT ALL STUDENTS ARE ON TARGET
FOR COLLEGE AND CAREER READINESS BEFORE HIGH SCHOOL 5 (2008), available at
http://www.act.orglresearchlpolicymakerslpdf/ForgottenMiddle.pdf.
133. Regarding the implications to the legal profession of general decline of reading,
writing, and research skills in the U.S. population, see Cathaleen A. Roach, Is the Sky
Falling? Ruminations on Incoming Law Student Preparedness (and Implications for the
Profession) in the Wake ofRecem National and Other Reports, II LEGAL WRITING: J. LEGAL
WRITING INST. 295,299-305 (2005).
134. See infra Section IV.

2009] PHENOMENOLOGY OF ERROR
instructor. Professors Austin, Barker, and Dickens 135 wrote extensive
margin comments and briefer summary end comments regarding the
substance and structure of analysis. They also targeted punctuation,
word usage, and sentence structure issues through interlinear notes and
editing suggestions, though the quantity of these comments tended to
diminish over the course of the year. 136 Professor Christie made
relatively few margin or interlinear comments, but provided lengthier
typed summary comments that addressed analytical, structural, and style
weaknesses. In some cases, the instructors inserted comments
electronically and in some cases wrote them by hand. Whether the
comments were typed, electronically inserted, or handwritten throughout
did not appear to affect how the students used them. 137
Students' SUbjective reactions to the first comprehensive responses
they received varied considerably, although their reactions were not
necessarily dependent on the type or quantity of feedback. Professor
Christie's students, for example, who received most of her critiques in
the form of end comments, rather than margin or interlinear comments,
reacted similarly to those who received extensive margin and interlinear
comments.
Student reactions did, however, reflect their previous selfassessments.
Their reactions ranged from being "impressed" about the
degree to which professors commented on their work,138 finding the
135. I refer to the professors by pseudonym to protect the confidentiality of the students
and professors involved in the study. Moreover, although Washburn's LARW professors are
male and female, I will refer to them all using feminine pronouns.
136. In some instances, Professors Barker and Dickens handwrote their comments, and in
others, they used the Word commenting function. Professor Barker included summary
comments in the grading rubric she returned to the students. Professors Austin and Dickens
also provided students with a grammar, punctuation, and style checklist, which identified
particular weaknesses and referred to specific pages in Deborah E. Bouchoux's Aspen
Handbook for Legal Writers for relevant instruction.
137. Because Ike had one document that was heavily marked with handwritten comments
and one that had extensive electronic comments, I was able to probe his preference between
the two methods. He said:
If this wasn't done on the spot, and you had given me this or this and said which
one do you want back, I would want the electronic one back because at least here I
can figure it out whereas up here, I don't think that you could figure it out and I
don't know that I could now. But here, any of us could figure it out, you just keep
reading. My preference, if there is going to be a lot, then electronically.
Third Interview with Ike, supra note 64 (transeript at 1 I).
138. Second Interview with Emily. supra note 80 (transcript at 12).
27

28 QUINNIPIAC LAW REVIEW [Vol. 28:1
feedback "appropriate" 139 or helpful, 140 to being "surprised," 141
"disappointed,,,142 and finding the feedback "tough" to take. 143 Only
two students appeared to have strong negative reactions to the comments
they received on their earliest work. One felt "kind of blind-sided" and
"shocked" to "get everything so ripped apart and torn apart.,,144 He
explained:
I didn't believe I wrote as bad as I was being told .... I was just pretty much
internalizing this at first and going, 'wow.' I don't think I was that had a
writer, but according to [my professor], I am.... [I]t was just kind of
overwhelming to you know, face that kind of, well it's bruising to your ego for
. 145
onet h mg ....
Another student's initial reaction to the comments he received was
"[c]onfusion and panic.,,146 He stated:
At first I felt it was overly critical and I couldn't understand why it needed to
be the way that it was. . .. Everything that I wrote just seemed to be bad and I
couldn't figure out why .... At the time, it was hard to swallow." 147
For many students, their instructor's comments, and their reaction
to them, had a minimal effect on the development of their writing skills,
at least initially. Because their first major graded writing assignment did
not require a revision, the students' use of feedback did not become
139. Andrew, who could not recall ever having "many comments as far as actually in the
'writing other than ... just grammar and punctuation," thought the amount of feedback "was
appropriate." First Interview with Andrew, supra note 34 (transcript at 22).
140. Helena, who had had doubts about her writing skills when she entered law school,
responded positively to the comments she initially received. She was not surprised by the
comments and she understood the comments to mean, "I needed work. I needed to learn how
to write better." Interview with Helena, supra note 41 (transcript at 9).
141. Describing his reaction to the feedback, George stated: "It didn't go so well for me.
It was completely my own mistake, but I was surprised by it because I thought I put a lot of
effort into it." Second Interview with George, supra note 63 (transcript at 2).
142. Julie reported: "I think I felt a little bit disappointed in myself. You know
sometimes when you're writing something and you're like 'yes, this is right on.' I think I felt
that way. . .. I think I was surprised at how many things I missed when I ... read [the
comments]. "
Interview with Julie, supra note 43 (transcript at 8).
143. Second Interview with Frank, supra note 61 (transcript at 4).
144. Second Interview with Conrad, supra note 1 (transcript at 3).
145. !d.
146. First Interview with Ike, supra note 42 (transcript at 13).
147. Interview with Ike, Student, Washburn University School of Law, in Topeka, Kan.
(Oct. 1,2007) [hereinafter Second Interview with Ike] (transcript at 19, on file with author).

2009] PHENOMENOLOGY OF ERROR
apparent until they worked on their second major graded project. That
project, which was an open research memorandum, required a "draft,"
which students revised for their final project using their instructors'
comments for guidance.
1. Reliance on Instructors to Edit Work
ludging from my review of their assignments, student reactions to
the basic-skills-focused comments did not influence how effectively they
used the comments during the revision process. In most cases, students
made limited use of this feedback. Indeed, in many ways the comments
failed to achieve the effect the instructors no doubt anticipated. For
some students, this was due to a misapprehension regarding the purpose
and scope of margin and interlinear comments.
Some students believed that their instructors marked all technical
and substantive errors that existed in the draft memo. Interestingly, that
belief was unrelated to the number of errors actually marked. For
example, Conrad, who received relatively few comments, expected his
instructor to mark all errors and did not understand that some teachers
might choose not to do so: "I assumed that the professors got all the
mistakes and I was told later that was a wrong assumption. I don't think
they are deliberately doing it, and I think they just didn't see it. ...
There's no mark on it, I'm fine, [she's] fine, move on.,,148 Similarly,
Ike, whose instructor made a significant number of margin and
interlinear comments, remarked, "All these comments, either
electronically or written, leads one to believe that everything is marked
and it's not. ... This can be deceiving.,,149
In Ike's case, his expectation that every mistake was marked came
from experience:
Personally, I think [the expectation] comes from everything that you've ever
done before you get to law school.... So, if the professor red marks
something. you missed it. If I got a paper back, and I used passive voice ten
times, but it was only marked three, I would be under the assumption that that
148. Third Interview with Conrad, supra note 58 (transcript at 6).
149. Third Interview with Ike. supra note 64 (transcript at I I). Helena, who had the
same professor as Ike, also thought that her professor commented on everything that the
professor considered wrong. Interview with Helena, supra note 41 (transcript at 22).
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30 QUINNIPIAC LAW REVIEW [VoL 28:1
was all three of them. I wouldn't look for more. It's the professor's job to
show me what I did wrong. It's my job to go back and correct it. 150
Thus, some students appeared to believe that their instructors would
edit and proofread their work. They relied on their instructors to point
out every error and put the burden on their instructors to "correct"
technical errors. They did not necessarily view the comments as a tool
for developing their own ability to proof and edit their writing. As the
interviews suggest, several factors influenced the students'
misunderstanding regarding their instructors' role and the resultant
expectation that they would correct technical and style errors. First, as
others have noted, "[n]ot only do many new law students lack practice in
writing, but most lack experience reading and applying teachers'
commentary." 151 Moreover, some students had never received feedback
on the particular errors that their LARW instructors noted. 152 Therefore,
to the extent that previous feedback was limited to notes on final projects
that did not require drafts, using feedback to develop their own ability to
revise their work was a new experience.
Other students did not understand why their instructors made
particular comments. Helena, for example, reported feeling "stumped"
by the comments and unclear about exactly what she was doing wrong
and how she could improve her writing. 153 For both small and largescale
problems, Helena reported: "Sometimes I just felt like I didn't
know where to go for help, to help me know what I was doing wrong.
The comments were there, but they still wouldn't necessarily tell me
exactly how I can fix it, or what was wrong.,,154 In some cases, for
example, the root of Helena's confusion was that her instructor was "not
writing the rule," which made is difficult for Helena to understand why
her word choices were poor. 155
Conrad also noted that he sometimes could not understand why his
instructor marked a sentence as "awkward":
ISO. Second Interview with Ike, supra note 147 (transcript at 6).
151. Grearson. supra note 13, at 156.
152. Andrew, for example, could not recall college instructors stressing paragraph
breaks, which he had difficulty with in his early law-school papers. First Interview with
Andrew, supra note 34 (transcript at 16).
153. Interview with Helena, supra note 41 (transcript at 9).
154. !d. (transcript at 20).
155. Id. (transcript at 23).

2009] PHENOMENOLOGY OF ERROR
Obviously it wasn't the way [my instructor] wanted it. Once in a while it was
clear to me that it was awkward, sometimes I said, "There is nothing wrong
with this sentence, it makes sense." So, in that case, I would just go ask ... .
You know, it's nice to think you're a mind reader but most of us aren't ....156
Students who possessed a weak understanding of the intricacies of
grammar, punctuation, and style were, thus, unable to detect the errors in
their work and could not correct them. They simply did not know why
what they wrote was wrong. This problem was exacerbated when the
instructors made few margin comments and interlinear corrections or
failed to explain the bases for their criticism.
Finally, students' prior use of college "writing centers," friends, or
family members for proofreading and editing assistance might have
influenced their expectations and approach in law school. 157 They were
historically conditioned to having others edit or proof their work and did
not, therefore, have experience overcoming deficiencies in grammar,
punctuation, and style on their own. 158
2. Mechanical Approaches to Small-Scale Revisions
Regardless of whether the students were consciously dependent on
their instructors to point out all of their errors, the interviews revealed
that most used the comments similarly. Few students used the
comments to effectively guide self-development. This was particularly
156. Second Interview with Conrad, supra note 1 (transcript at II). Conrad's instmctor
made very few marginal/interlinear comments on the students' work, reserving the majority
for end comments.
157. Julie reported utilizing her college's writing center:
[W]e had this writing center. Students could take their papers and have them
proofread before you turned them in. I did that a couple of times for an important
paper or if I had time to do it. . .. They would read the paper and make all the
grammatical changes and sometimes they would make content suggestions or
corrections. Usually, ifI agreed with them, and most of the time I did, I would go
ahead and modify.
Interview with Julie, supra note 43 (transcript at 4). Andrew asked his parents, girlfriend, and
roommate to edit some of hiS college papers. First Interview with Andrew, supra note 34
(transcript at 9-11). Betsy took papers she wrote for a particularly exacting professor to the
"English Lab" to have someone review her paper. If the individual showed her where she had
errors, she would fix them. First Interview with Betsy, supra note 35 (transcript at 11).
158. Julie, for example, believed that "the most effective way to check for grammar is to
have someone else do it, like after you've done your best. Somebody else will always find
something that you've missed." She acknowledged, however, that she needed to work on her
own ability to fmd grammatical errors. Interview with Julie, supra note 43 (transcript at 13­
14).
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32 QUINNIPIAC LAW REVIEW [Vol. 28:1
true of those comments directed at grammar and punctuation. When
asked how they used the comments they received from their instructors
on their draft first-semester memoranda, the students responded:
George: "[O]n the rough draft, I looked at each comment as an
isolated incident rather than looking at the document as a whole.,,159
Julie: "If it was something where she marked on the paper to
change the grammar or something like that, or insert words, I would
usually go and put those in first. [I] would take the thing and just sort of
mindlessly put them in there." 160
Betsy:
I remember concertedly making an effort to fix everything that [my professor]
saw that was wrong, but after that I really didn't try to go back. . .. I went
through it for typos [and citations] and things like that, but I don't think that I
really, again tried to get down deep in the middle of [the] comments and really
assess what they meant and what they meant for my paper overall .... 161
A few students had a more methodical approach to revising their
work and using the comments their instructors provided. These students
also approached technical errors mechanically, however:
Frank:
I would number or highlight every comment and try and go through and check
each change off when I made it. I tried to thoroughly go through and make
those changes. . .. At the beginning I knocked out the easy changes, whether
it would be spelling or word choice and tried to correct those. Then I tried to
h It · t h e 1 arger ones l'k' 1 e major reorgamzatiOn .. .... 162
David's methodology for addressing the comments he received was
the most analytical. He divided the comments into "three different
levels," the first of which addressed specific errors, such as missing
punctuation, incorrect citations and other technical issues. 163 Even
159. Second Interview with George, supra note 62 (transcript at 3).
160. Interview with Julie, supra note 43 (transcript at 9) (emphasis added).
161. Second Interview with Betsy, supra note 57 (transcript at 8). Helena, too, relied on
the margin and interlinear comments to revise her work but admitted that she did not analyze
her draft memo to find other areas in need of revision. Interview with Helena, supra note 41
(transcri pi at 22).
162. Second Interview with Frank, supra note 61 (transcript at 5).
163. First Interview with David, supra note 37 (transcript at 20). David described
second-tier problems as, "this sentence isn't saying what you think it's saying." ld. To fix a
second-tier problem, he would "read it and then read it within the context ofthe paragraph and
then maybe read it within the context ofthe section and try and figure out what it is I'm trying

2009] PHENOMENOLOGY OF ERROR
though David searched for unmarked errors that were similar to those his
instructor marked, the fact that these types of errors would "take a few
seconds to fiX,,164 suggests that he might not have gone very far in trying
to understand the underlying causes ofhis basic skill errors.
Although he did not characterize the feedback he received by type,
Andrew too addressed the comments methodologically. First, he would
look at all of the specific comments that were on the draft and then make
the necessary changes. 165 Unlike other students, however, he "tried to
make notes of stuff that maybe seemed repetitive" before continuing to
write. 166 After writing and proofreading, Andrew reviewed his draft
once more to ensure that he had thought about "anything that stood out
as being the same errors over and over again." 167 Thus, from the
beginning, Andrew appeared to be the only student who reflected on the
comments as a whole.
3. No Substantial Change ofUse over Time
Although some students changed their approach to using instructor
comments over the course of the year, most students generally utilized
the same approach. 168 Andrew and David continued to make the
changes indicated and to search unmarked areas in their work to uncover
repetition of the errors. 169 Frank continued to categorize the comments
according to whether they referred to small-scale issues, which he could
quickly revise, or large-scale issues, such as structure and analysis,
which required more effort. 170
Ike, on the other hand, no longer
believing that the sheer number of comments indicated that all errors
were marked, did try to find other instances of unmarked but similar
errors. 171
to say." Id. David characterized the third tier of comments as those addressing larger-scale
issues, such as not fully analyzing an element of a claim, not having a comprehensive fact
section, or a specific over-all weakness. Id. To address third-tier weaknesses, he would
engage in a comprehensive rewrite of the problematic sections of his work. First Interview
with David, supra note 37 (transcript at 20).
164. Id.
165. First Interview with Andrew, supra note 34 (transcript at 21).
166. Second Interview with Andrew, supra note 34 (transcript at 4).
167. Id.
168. See Second Interview with George, supra note 62 (transcript at 6-7).
169. Second Interview with Andrew, supra note 34 (transcript at 7); Second Interview
with David, supra note 48 (transcript at 7).
170. Second Interview with Frank, supra note 61 (transcript at 9).
171. Third Interview with Ike. supra note 64 (transcript at 11).
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34 QUIl"NIPIAC LAW REVIEW [Vol. 28:1
Some students tried to understand or analyze the comments more,
even if they did not use them forensically. 172 Betsy and George changed
their approach in that they made the changes called for before
participating in mandatory conferences. 173 Conrad was "more receptive
to changing whatever (his professor] wanted," but would seek his
professor's help more often ifhe did not understand the comments. 174
Given the observations that led me to undertake this project-that I
was seeing the same errors second semester that I had addressed first
semester-it is perhaps not surprising that the comments they received on
their first-semester work played no direct role in the students' secondsemester
wntmg process. Only Andrew and Conrad reviewed the
comments they received on their first-semester memos while writing
their second-semester brief. 175 As George stated, "I wanted to start fresh
and I did not review my first semester comments." 176
The interviews revealed that the students were conscientious; that
is, they addressed what their instructors directed them to address. Their
reliance on their instructors to identify and correct errors, and their
persistently mechanical approaches to addressing those errors, might
172. Interview with Helena, supra note 41 (transcript at 14).
173. Second Intervicw with Betsy, supra note 57 (transcript at 13); Second Interview
with George, supra note 62 (transcript at 5).
I 74. Second Interview with Conrad. supra note I. Conrad adopted a pragmatic approach
to using the comments during revision. As he said, "What else are you gonna do? I'm not
going to stick to [the original], [shc's] a professor. [She's] grading it, so you gotta change it ..
. . " Id.
175. Andrew used the comments after he wrote a draft to detetrnine whether he was
repeating errors he had made first semester. Second Interview with Andrew, supra note 34
(transcript at 17); Conrad reviewed the comments he received on his final open memo to
detetrnine whether he was making any errors. Second Interview with Conrad. supra note I
(transcript at 9). But see Second Interview with Betsy, supra note 57 (transcript at 13) (stating
that, although she reviewed her first semester work product, she did not do so in connection
with the writing process); First Interview with David, supra note 37 (transcript at 22-23)
(stating that he probably did not review the first semester comments); Second Interview with
Emily, supra note 80 (transcript at II) (stating that she might have skimmed the comments
but did not apply them); Second Interview with Frank, supra note 61 (transcript at 7) (noting
that "it's easy when there's a large break between semesters to kind of forget about the first
semester"); Second Interview with George, supra note 62 (transcript at 5) (admitting that he
wanted to "forget about" the first semester); Interview with Helena, supra note 41 (transcript
at II) (acknowledging that she never reviewed comments she received during her first
semester); Third Interview with Ike, supra note 64 (transcript at 9-11) (stating that he
analyzed the comments as his assignments were returned but did not have time to review them
again later); Interview with Julie, supra note 43 (transcript at 10) (acknowledging that the
comments were helpful for detetrnining how much she still needed to improve, though she did
not constructively use the feedback).
176. Second Interview with George, supra note 62 (transcript at 5).

2009] PHENOMENOLOGY OF ERROR
reflect their lack of previous experience receiving and responding to
similar concerns. Certainly, the lack of recent instruction on basic
writing principles affected the ability of some students to understand the
bases for the criticisms their instructors provided.
4. Failure to Properly Conceptualize Legal Writing
Another overarching theme that emerged from the interviews is that
students had difficulty conceptualizing legal writing. It was not simply
that they misunderstood the importance of writing in the law, but also
that they did not fully conceptualize the similarities or differences
between "legal writing" and the writing they had done before. As Emily
cogently noted:
[Legal writing1 is totally different and you keep telling us that this is totally
different. but I don't think we really believe you, or we just think it will take a
little tweak here and a little tweak there. We don't realize that you're
fundamentally changing your approach to writing and your purpose in wTiting
and your styIe
···
m wrItmg.
177
For students like Conrad, the failure to understand the structure of
legal analysis led to frustration and the inability to discern certain
similarities between his previous writing and legal writing. As he
explained: "Sometimes I'm still at a bit of a loss as to just what people
want out of your writing in any legal setting, because I don't know, to
this day, what they really, really want."I78 Betsy reported feeling that
she was "flying blind" because she "had no idea what [she] was
doing." 179
Ike too failed to appreciate how the structure of a piece of legal
writing reflects its purpose. Ike "pictured a whole bunch of fiveparagraph
essays" and was not prepared for the legal writing "style." 180
177. Second Interview with Emily, supra note 80 (transcript at 7).
178. First Interview with Conrad, supra note 36 (transcript at 19). Conrad contrasted the
need, in legal writing, to "write more elaborately and spell every little thing out," with his
previous training, which required "boil[ing] [concepts] down to concise sentences and
paragraphs." ld. (transcript at 10); Second Interview with Conrad, supra note 1 (transcript at
13).
179. Second Interview with Betsy, supra note 57 (transcript at 10). Betsy faulted herself
for part of her confusion because she had books and other resources she could have referred to
but did not. ld.
180. First Interview with Ike, supra note 42 (transcript at 12).
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36 QUINNIPIAC LAW REVIEW [Vol. 28:1
For some students, effective communication was not dependent on
grammar and punctuation. For example, Betsy, Ike, and Julie had each
performed well as writers and each believed that they were good writers
when they began law school, even though they also knew that they had
trouble with grammar and punctuation. 181 Ike, though admitting to
weaknesses with comma usage, said that he:
wanted to turn in a paper that [he Jhad written to another law professor and say
'grade this,' ... [o]nly to show that the placement of commas would not be the
same between those two professor's [sie] perspectives on how to use commas
and that it's a subjective thing as opposed to ... objective. 182
What Ike expressed may have been a fundamental
misunderstanding of the substantive purposes of punctuation. By
conflating the technical skills of grammar and punctuation with style, he
overlooked the principle that "[u]nlike stylistic choices, grammar and
standard punctuation rarely reflect equally good choices."I83 On the
other hand, he is correct that the rules of grammar and punctuation are
not always clear and experts can disagree on questions of usage. 184
Failure to properly conceptualize legal writing may have resulted in
students' inability to distinguish what is different about it-the
paradigmatic structure of the analysis-from what is the same-principles
of good writing. If so, while struggling with what was new, students
may have concomitantly neglected what they already knew.
Problems with transfer-the ability to take principles learned in one
context and apply them in another-may also explain why students
appear to abandon principles of good writing when faced with the
181. See supra Section III. B.
182. Third Interview with Ike, supra note 64 (transcript at 12). Frank expressed some
frustration about his experience. He said, "It was tough to know if 1 was doing legal writing,
or pleasing the professor." Second Interview with Frank, supra note 61 (transcript at 12).
183. Lillian B. Hardwick, Classical Persuasion Through Grammar and Punctuation, 3 1.
ASS'N LEGAL WRITING DIRECTORS 75, 79 (2006).
184. Martha Faulk, Matters of Punctuation: Open or Close, 16 PERSP.: TEACHING
LEGAL REs. & WRITING 44 (2007); Eugene Volokh, Correcting Students' Usage Errors
Without Making Errors ofOur Own. 581. LEGAL EDUC. 533 (2008). In his article, Grammar
is Back, but When Will We Start Cooking?, Ed Vavra contends that "traditional" grammar no
longer exists. Ed Vavra, Grammar is Back. but When Will We Start Cooking? ENG. 1., Jan.
2003, at 86. Although he argues that grammar instruction has returned to the classroom, he
notes that grammarians disagree on how to identify different parts of speech, which poses
difficulties for teachers who teach the subject. /d.

2009] PHENOMENOLOGY OF ERROR
unfamiliar dictates of structured legal analysis. ls5 Experts on literacy
education note that students who do well in one form of writing will not
necessarily do well in other kinds. 186 One expert on writing and
linguistics has noted, "When students are faced with an unfamiliar
writing challenge, their apparent ability to write will falter across a broad
range of 'skills. ", 187
In one passage, the authors of the widely used college text, The
Craft ofResearch, recounted the following rather ironic event:
At this point, you may be feeling a bit overwhelmed. Take comfort in the fact
that your anxieties have less to do with age or intelligence than with sheer lack
of experience in a particular field. One of us was explaining to teachers of
legal writing how being a novice makes new law students feel insecure. At the
end of the talk, one woman reported that she had been a professor of
anthropology whose published work had been praised for the clarity and force
of her writing. Then she switched careers and went to law school. She said
that during her first six months, she wrote so incoherently that she feared that
she was suffering from a degenerative brain disease. Of course, she was not:
she was experiencing a kind of temporary aphasia that afflicts most of us when
we try to write about matters we do not entirely understand for an audience we
understand even less. She was relieved to find that the more she understood
law, the better she wrote about it. 188
Though difficulties regarding the transfer of skills and knowledge
cover the educational spectrum, research on transfer can help to explain
why students exhibit weak writing skills, after having been successful
185. The difficulty of applying newly acquired skills and knowledge is linked to
problems with transfer, which cognitive psychologists have studied since the I 980s. See
generally ROBIN FOGARTY ET AL., How TO TEACH FOR TRANSFER (1991) (noting that
students do not automatically transfer learning and describing bridging strategies to optimize
transfer); SARAH LEBERMAN ET AL., THE TRANSFER OF LEARNn-;G: PARTlCIPANTS'
PERSPECTlVES OF ADULT EDUCATION AND TRAINING (2006).
186. Mark Richardson. Writing is Not Just a Basic Skill, CHRON. HIGHER EDUC., Nov. 7,
2008, at A47, available at http://chronicle.comlfree/v55/iIllIla0470I.htm; see also Joseph
M. Williams, On the Maturing ofLegal Writers: Two Models ofGrowth and Development. I
LEGAL WRITING: 1. LEGAL WRITING INST. I (1991) (discussing, inter alia, why writers in
transition, such as new legal writers, write poorly).
187. Richardson, supra note 186. The author argues that writing skills develop over a
lifetime and cannot be adequately taught in lower-level college composition courses alone.
Id. Other writing experts reject the notion that first-year college composition courses can
teach '''college writing' as a set of basic, fundamental skills that will apply in other college
courses and in business and public spheres after college." Douglas Downs & Elizabeth
Wardle, Teaching About Writing, Righting Misconceptions: (RejEnvisioning "First-Year
Composition" as "Introduction to Writing Studies, .. 58 C. COMPOSITION & COMM. 552, 552
(2007).
188. WAYNE c. BOOTH ET AL., THE CRA.FT OF RESEARCH, 126 (2d ed. 2003).
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38 QUINNIPIAC LAW REVIEW [VoL 28: I
writers in the past. It can also explain why they sometimes fail to apply
the principles of legal research, analysis, and writing that they learned
first semester when they sit down to write a second-semester
argumentative brief,189 and why clinicians and other upper-level law
instructors see memoranda that in no way resemble what the students
learned in their legal writing courses.
D. Poor Self-Efficacy Skills
Although all of the students necessarily expended much time and
effort on their LARW classes, in several ways students were their own
worst enemies. Some did not take seemingly obvious steps to determine
why they were making certain errors in order to correct them and had
difficulty with time management.
Ignoring the clues that first-semester comments might have
provided for success in the second semester was not the only way in
which students acted against their interests by failing to use available
resources to improve their writing. Other student behavior demonstrated
that some errors resulted from the impetus to finish their assigned tasks
without actually mastering them. 190
Although most of the students referred to examples their instructors
or textbooks provided during the writing process, surprisingly some
students reportedly stopped reading assignments-even when they were
frustrated and having difficulty. 191 Although the tendency was by no
189. See Oates, supra note 20, at 1 nn.2-6 and accompanying text (using principles
derived from the research on transfer to demonstrate how legal writing instructors can
enhance the possibility that first-year law students can apply newly acquired research and
analysis skills to later assignments); Oates, supra note 15 (applying principles derived from
educational psychology and transfer to critique traditional law school pedagogy).
190. The Christensen and Oates studies of student reading show a correlation between
performance outcomes and mastery focus. See Christensen, supra note 24; Oates, supra note
24.
191. Most of the students reported using the textbooks for help with large-scale issues
when writing. Examples of the documents they were working on were particularly helpful for
assistance with structuring their documents. See, Second Interview with Andrew, supra note
34 (transcript at 4); Second Interview with Betsy, supra note 57 (transcript at 3-4) (noting that
she should have referred to the examples more while she was writing). Conrad would have
liked samples other than those in the texts-he would have liked to view the instructor's own
memos and briefs. Second Interview with Conrad, supra note I (transcript at 19); Second
Interview with Frank, supra note 61 (transcript at 3); Second Interview with George, supra
note 62 (transcript at 1-2); Interview with Julie, supra note 43 (transcript at 7).

2009] PHENOMENOLOGY OF ERROR
means universal, 192 according to Emily, she and other students, stopped
reading for class because:
[T]here was a general consensus in class that we didn't have to read for this
class. It wasn't by [the professor] at all, it was just sort of when we would get
together in our discussion groups we would talk about what we were doing ...
nobody read for class. But [the professor] covered what the reading
. 193
assIgnment was.
Helena, whose instructor was different than Emily's, also believed
that the failure to prepare for class was fairly commonplace. She
believed that students were motivated to bypass the readings because
they "weren't required to answer questions on it, or [they] didn't have
quizzes or tests like [in their] other classes ...." 194
The students who perceived the class in this way failed to associate
the reading assignments with their performance, as they did in their other
classes. Moreover, even when the students were directly tested, as with
citations, some students exhibited similar counterproductive behavior.
Students reported trying to complete their on-line citation exercises
without actually reading or referring to the AL WD Citation Manual,
which contained the rules necessary to complete the exercises
correctly.195 At least one student similarly attempted research exercises
without consulting her research textbook. 196
192. David "read every page [that] the teacher assigned. . [though] not every student
does that." First Interview with David. supra note 37 (transcript at 16); see also Second
Interview with Betsy, supra note 57 (transcript at 3) (stating that although she skimmed some
assigned readings, Betsy usually read the main legal writing textbook); Second Interview with
Frank, supra note 61 (transcript at 1) (though aware that some students skipped the readings,
he at least skimmed them before class); Interview with Julie, supra note 43 (transcript at 7)
(though she did not always do the assigned readings before class, she usually referred to them
before or during the writing process).
193. Second Interview with Emily, supra note 80 (transcript at 4). According to Emily,
she stopped doing the assigned class reading around the third week of classes. ld. Students
claimed that this was true in LARW and in their casebook classes. Emily did, however, use
the examples in the texts to guide her in organizing her documents. ld. (transcript at 4).
194. Interview with Helena, supra note 41 (transcript at 12). Helena did read the
textbook assignments as they were scheduled but, in her first semester, did not use them while
writing. ld. (transcript at 6-7).
195. First Interview with Ike, supra note 42 (transcript at 13-16). The Lexis Interactive
Citation Workbook exercises, which train students on citation, can facilitate those who are
concerned simply with completing the assignment rather than learning the rules of citation.
First, the exercises ailow three attempts at a correct answer before the program marks the
answer wrong. Thus, rather than look up the rules relevant to the particular exercise, the
students would attempt to "guess" at the answers. Second, after a student fails to complete a
citation correctly, the program alerts the student to the error, so that the student can figure it
39

40 QUINNTPTAC LAW REVIEW [Vol. 28:1
In view of the most recent findings by the Law School Survey of
Student Engagement, the students in this study may reflect national
trends. According to the 2008 Survey results, although over 90% of
first-year students report that they regularly attend their classes prepared,
that number drops to 75% by the third year. 197
Not only did some students fail to read class assignments, they also
failed to avail themselves of resources to overcome their specific
weaknesses. Some might have reviewed or rewritten a sentence several
times when they knew it required revision but would not use the
textbook, grammar and style manual, or any other resource to locate the
source of the error. 198 As Betsy explained:
I had no idea what I was doing so that's why I really didn't do so well ...
was just flying blind ... [although] I really didn't have to ... I had all these
things I could have looked at. That I could have compared and I could have
read through and tried to spend more time with .... [T]here's a point where
you just get so frustrated and so mad and you're just sitting there reading it
. d h'nk ,. 199
over an d over agam an you t 1 you re gOlng to scream ....
Students also overlooked specific advice that would have required
them to take extra measures to address basic skills. Helena was unique
in following her instructor's advice to use on-line resources and the
Aspen Handbook for instruction on punctuation rules. 200 She also
followed her instructor's advice to use Word's "search and replace"
function to correct an endemic pronoun error that was causing
out without referring to the citation manual. Finally, some professors allowed students to
repeat citation exercises and would "grade" the exercises taking into account the revised
score. For some students, this worked as a disincentive to spend the time learning the rules
from the beginning. See Second Interview with Betsy, supra note 57 (transcript at 3); First
Interview with Ike, supra note 42 (transcript at 14). Betsy started using citation resources for
completing the exercises toward the end of the first semester. Second Interview with Betsy,
supra note 57 (transcript at 3).
196. See Second Interview with Emily, supra note 80 (transcript at 22).
197. LAW SCH. SURVEY OF STUDENT ENGAGEMENT, 2008 SURVEY RESULTS 7 (2008),
available at
http://lssse.iub.edul2008_Annual_Reportlpdf/j4u5h7e9/LSSSE_2008_AnnuaCReport.pdf
[hereinafter 2008 LSSSE SURVEY]'
198. Second Interview with Betsy, supra note 57 (transcript at 10-11, 15).
199. [d. (transcript at 29). Emily also used no reference books to improve her basic
writing skills. Second Interview with Emily, supra note 80 (transcript at 20-22). Instead, she
would read and reread her problem areas until she could revise them to her satisfaction. Third
Interview with Emily, supra note 60 (transcript at 2-5).
200. Interview with Helena, supra note 41 (transcript at 7-9, 24).

2009] PHENOMENOLOGY OF ERROR
ambiguity. 201 Frank, on the other hand, disregarded a margin comment
that directed him to Purdue University's Online Writing Lab (OWL)202
for assistance with his repetitive preposition errors. He, as well as
Betsy, George, and Ike,203 also disregarded specific directions to review
the Aspen Handbook to address particular technical errors. 204 Although
they occasionally used the resource for examples of document forms,
they did not use it to learn the rules of the grammar or punctuation issues
that gave them trouble. 205
In Ike's case, referring to grammar or style manuals would not have
helped him conquer his basic skill errors. He explained, "All of the
technical aspects of my writing are self-memorized. I wouldn't say selftaught
because I would go and visit with the professors themselves, 'why
did you mark me for this, what are you talking about, teach it to me?",206
When asked whether anyone had ever suggested a manual, such as
Strunk & White, he responded:
No. If they had suggested it, or if they did. I didn't pay attention to it. I'm the
kind of person that I like learning by example and being taught one-on-one
more than picking it up from a book. A picture paints a thousand[] words. If
they did, that's not how I learned it. I learned it by visiting with them, or
201. ld. (transcript at 20-21). Andrew referred to the Aspen Handbook if he was
struggling with particular issues, such as commas. First Interview with Andrew, supra note
34 (transcript at 17).
202. The Purdue Online Writing Lab (OWL), http://owLenglish.purdue.edui (last visited
July II, 2009).
203. Interview with Betsy, Student, Washburn University School of Law, in Topeka,
Kan. (Aug. 13, 2007) [hereinafter Third Interview with Betsy] (transcript at 14, on file with
author); Second Interview with George supra note 62 (transcript at 8); Third Interview with
Ike, supra note 64 (transcript at 7). Ike went to OWL for information on commas but, other
than reading it, did nothing more to conquer his problem with commas. Third Interview with
Ike, supra note 64 (transcript at 6-7).
204. Frank purchased Bryan Garner's Red Book, but used it more for examples of format
or structure than grammar and punctuation. Second Interview with Frank, supra note 61
(transcript at 10, 16, 18). When Professors Austin and Dickens returned assignments first
semester, they supplied each student with a grammar and style checklist keyed to the specific
pages in the assigned grammar and style manual where particular subjects were addressed.
Both professors assigned Bouchoux's reference. See supra note 136. If a student appeared
particularly weak in one of the skill categories-paragraphs, commas, or dangling modifiers,
for example-the instructors checked the column next to that skill. The chart advised students
to look up any subjects indicated on the chart.
205. E.g., Second Interview with George, supra note 62 (transcript at 7, 13).
206. First Interview with Ike, supra note 42 (transcript at 7).
41

42 QUINNIPIAC LAW REVIEW [Vol. 28:1
reading examples myself. . .. It was a new experience for me to get here and
be given so many writing manuals when I had never had those tools before. 207
Julie's candid insight into her own thinking process and conduct
partly explained the repeated punctuation errors in her work:
I don't know when to use a comma and a semicolon. . .. I think one of the
problems I didn't address was that there are things that I don't know about
punctuation that I need to know before I can correct those errors. Probably if I
had gone back and looked up rules of punctuation or thought about them I
would have done better at catching those errors. I think one of the reasons I
didn't was because like I think the thing with punctoation is most people think
that they understand punctuation. You've been taught about it since you were
in elementary school and so you think you've got it and then you also tend to
think it's boring. So, I think that's your problem and then you get in that
sitoation where you like put something down where you're not sure. There
were a lot of times I recall writing when I wasn't 100% sure about whether the
. . h 208
punctuatIon was ng t or not.
Competing demands on students' time also affected their approach
to LARW. For some, the failure to complete reading assignments was
related to the difficulty of managing their workload. As Ike explained,
"Something had to give. . .. I can say that I didn't read in a lot of
classes. Which class had the hottest fire? That's the one that I was
reading in.,,209 Conrad, whose use of textbooks declined second
semester, explained: "Well Tdidn't use the textbooks as much because of
time constraints. I mean, there was just so much that needed [to be]
done and so little time.,,210 Helena found trying to learn research and
writing, in addition to her other courses "overwhelming.,,21 1 In Emily's
case, time management problems resulted in her being "rushed" and
sloppy with certain technical aspects of her writing. 212
Time management may be inherently difficult with a two-semester
LARW curriculum. For students to learn legal analysis and legal
research with sufficient time to use these new skills in three written
207. Id. (transcript at 8). Conrad similarly found manuals of limited utility. He
explained, "The books to me on how to do [this]-they're okay, I think it's good to read them,
but to me there is nothing like just doing it and just getting the feel for it, getting the feedback,
good or bad, and then just making adjustments." Second Interview with Conrad, supra note I
(transcript at 11).
208. Interview with Julie, supra note 43 (transcript at 20).
209. First Interview with Ike, supra note 42 (transcript at 13).
210. Second Interview with Comad, supra note I (transcript at 12).
211. Interview with Helena, supra note 41 (transcript at 25).
212. Third Interview with Emily, supra note 60 (transcript at 3-4).

2009J PHENOMENOLOGY OF ERROR
memoranda first semester results in a very demanding, front-loaded
course. Although the second semester draws on lessons students learn in
the first semester, it too requires a substantial time commitment and
expert juggling of competing academic and personal demands. For
some, self-preservation might dictate the choice between preparing to
respond to a professor's questions in front of one's peers, and addressing
the esoteric rules of prepositions or semi-colons. To choose the former
is not illogical.
E. Reliance on In-Person Conferences
All students agreed that individual conferences with their
instructors were helpful, if not "crucial,,213 to the development of their
legal writing skills. In most cases, students approached these
conferences methodically. They prepared for their conferences by
reviewing the feedback their instructors had provided/ 14 making
suggested revisions before conferences,215 and having a clear agenda. 216
Outside of the mandatory conferences, few students sought their
instructor's assistance from the start.
217
Several, however, reported
significantly increasing the amount of individual support they sought
over the course of the year.218 George, for example, recalled seeking his
instructor's assistance "at least every other day" during the second
2 I 3. First Interview with David, supra note 37 (transcript at 19).
214. Second Interview with Betsy, supra note 57 (transcript at 9).
2 I 5. David reviewed alI of his instructor's comments and tried to apply them before
meeting with her. First Interview with David, supra note 37 (transcript at 19). If he had a
sentence-level problem, he "would try and re-word the sentence ... and ... show it to the
teacher in the meeting." [d.
216. Andrew and David created checklists of items to discuss with their instructor.
Second Interview with Andrew, supra note 34 (transcript at 6, 8); First Interview with David,
supra note 37 (transcript at 24).
217. Although Conrad consulted his professor outside of the mandatory conferences
during the first semester, he said: "One of the things that I did not understand about law
professors is that you were supposed to talk to them. I've been told you weren't." Second
Interview with Conrad, supra note 1 (transcript at 5). Emily, on the other hand, sought her
instructor's assistance from the start. Second Interview with Emily, supra note 80 (transcript
at 4-9).
218. Second Interview with Conrad, supra note 1 (transcript at 8-9). As Ike explained:
As the year went on, I realized that the professors were more than willing to help
you if you were willing to ask and put forth the effort, so I would get as much face
time with my writing professor as I could and ask questions. I stopped guessing
and just went in and started asking.
Second Interview with Ike, supra note 146 (transcript at 4).
43

44 QUINNIPIAC LAW REVIEW [Vol. 28:1
semester to get feedback as he wrote his appellate brief. 219 He did not
modify his use of written feedback, however; he continued to consider
his instructor's comments in isolation. 220 Although the conferences
usually focused on structural and analytical issues, in a few instances
students did obtain assistance with sentence-level problems. 221
Ike and Julie also participated in face-to-face conferences with their
instructor to assess their draft appellate briefs. As Ike described the
processes, they reviewed the brief:
[Ploint by point, paragraph by paragraph, page by page through the whole
paper, her first time grading the paper[s]. She had her criteria there ... and
when we got to a problem spot, we would talk our way through the whole
thing. It was helpful for me for her to say "what does this mean?" and for me
to say "well this is what I'm trying to say.,,222
This process was also beneficial to Julie, who said: "When I read
what I write I understand it because I wrote it, so this was helpful for me
to see where other people would not understand me. . . . There were
some things that I caught reading out loud on my appellate brief that
didn't make any sense.,,223
Individual conferences can be key to assisting students overcome
their substantive and technical errors. In some instances, however, the
students relied on their instructors' assistance while, at the same time,
neglecting reading assignments and other sources that might have aided
them in the writing and revision process. They also had high
expectations regarding the amount of guidance they would receive. For
example, Emily, who often brought working drafts to her instructor for
review, said:
I brought it in and there were minor comments made, and then big comments
made, that I didn't know how to apply, so I got about five minutes worth of
editing from something that I worked on for a number of hours. I kind of
224
didn't know what to do for the next draft
219. Second Interview with George, supra note 62 (transcript at 5).
220. Id. (transcript at 17).
22l. Andrew recalled working with his LARW instructor to revise wordy sentences,
which he found helpful when he was editing his work on his own. Second Interview with
Andrew, supra note 34 (transcript at II). Betsy worked with her instructor on recognizing
and revising the passive voice. Third Interview with Betsy, supra note 202 (transcript at 8).
222. Second Interview with Ike, supra note 147 (transcript at 7).
223. Interview with Julie, supra note 43 (transcript at 8).
224. Second Interview with Emily, supra note 80 (transcript at 8).

2009] PHENOMENOLOGY OF ERROR
Thus, Emily wanted more than general guidance; her interview
suggested that she sought assistance in editing her work and specific
suggestions for improvement:
[Ilt wasn't like an actual writing class where you sit down and they talk about
where you're headed in the paper and how well you're explaining things .... I
was very diligent about coming to [my instructor] before the but it
wasn't like I actually felt that we sort of processed what I wrote.
Emily's expectation may not have been realistic. Ike claimed that
his assessment conference lasted six hours, although he admitted that the
length of his meeting was unique. 226 Few instructors can devote that
much attention to all of their students who have basic writing skills
issues. Indeed, one student complained that his instructor's office hours
were insufficient for the number of students who wanted to speak with
her because the first student to get in would monopolize the time. 227
The interviews revealed that while the students did not substantially
modify their use of feedback over the course of the year, many did
increase their use of their instructor's time. As Table 6 demonstrates,
improved perfonnance was not substantially related to the students' use
of feedback.
225. Id
226. Third Interview with Ike, supra note 64 (transcript at 11).
227. Second Interview with Frank, supra note 61 (transcript at 4).
45

46 QUINNIPIAC LAW REVIEW [Vol. 28:1
TABLE 6: LARW PERFORMANCE FIRST AND SECOND SEMESTER AND CHA'IGE 1'1 USE Of
FEEDBACK OR INSTRUCTOR TIME OVER YEAR
Change in Use of
Student First Semester Second Semester Feedback or Instructor
Name LARWGrade LARWGrade Time
Andrew 228
Betsy 229
B+ B­ 1\0 Change
Used Comments to Revise
C C- Before Conferenee
More Reeeptive to
Comments and Increased
Conrad 230 C B- Time with Instructor
David 231
Emill 32
Frank 233
George 234
Helena 235
Ike 236
A A No Change
C B- No Change
C+ B No Change
Used Comments to Revise
Before Conference,
Dramatically Increased
C+ A (Top Paper) Time with Instruetor
Followed Direclions for
Self-Help and
C+ B Instructor
B­ B+ Instructor
Julie B B+ Instructor
Increased Time with
Increased Time with
Increased Time with
228. First Interview with Andrew, supra note 34 (transcript at 21); Second Interview
with Andrew, supra note 34 (transcript at 4).
229. Second Interview with Betsy, supra note 57 (transcript at 10).
230. Second Interview with Conrad, supra note I (transcript at 9-10, 12).
231. First Interview with David, supra note 37 (transcript at 20, 23-24).
232. Second Interview with Emily, supra note 80 (transcript at 9,14).
233. Second Interview with Frank, supra note 61 (transcript at 9).
234. Second Interview with George, supra note 62 (transcript at 6).
235. Interview with Helena, supra note 41 (transcript at 14-16).
236. First Interview with Ike, supra note 42 (transcript at 15); Second Interview with Ike.
supra note 147 (transcript 5).
237. Interview with Julie, supra note 43 (transcript at 8).

2009] PHENOME]>';OLOGY OF ERROR
Although most of the students earned higher grades at the end of
the year than after the first semester, many of the technical weaknesses
that were evident in their early writing surfaced in their later writing. In
some cases, this was because the students had not yet adopted an
approach to writing that would enable them to see and correct their
errors and, in other cases, it was because they had not internalized the
governing technical rules.
Andrew, for example, was typical. He had mixed success
addressing his paragraphing issues. Although by the end of the year he
seemed to recognize when one should break a paragraph, and had
corrected those specific instances his instructor noted, he still had overly
long paragraphs. He attributed his performance gain to improved editing
and proofreading processes but noted that using comments was "almost
like a golf swing where on each time through your paper you can ...
only focus on one or two things and after that you pretty much have to
go through and focus on something else. There is no way to really get
all of it at one time."238 Thus, he often "guessed" when to break a
paragraph and was "hit or miss" with verb tenses and parallelism, with
which he also had difficulty.239
When asked what they believed would be their greatest impediment
to improving their writing skills, students identified similar barriers.
Andrew, Helena, and Ike believed it would be the lack of practice in law
school. 240 Betsy, Frank, George, and Julie, on the other hand, identified
themselves as their greatest impediments. 241 As Betsy said, "I would
think that would be me. I'm my own biggest impediment by not
spending enough time trying to work on all those things, because I think
that I can do all those things if I just spend enough time and try.,,242
David admitted that he should "sit down and re-read" the assigned
grammar manual but confessed that he probably would not because "it's
238. First Interview with Andrew. supra note 34 (transcript at 21).
239. Second Interview with Andrew, supra note 34 (transcript at II).
240. ld. (transcript at 14); Interview with Helena, supra note 41 (transcript at 19, 24);
Third Interview with Ike supra note 64 (transcript at 28-29).
241. Second Interview with Betsy, supra note 57 (transcript at 25); Second Interview
with Frank, supra note 61 (transcript at 14); Second Interview with George, supra note 62
(transcript at 11); Interview with Julie, supra note 43 (transcript at 16-17).
242. Second Interview with Betsy, supra note 57 (transcript at 25).
47

48 QUINNIPIAC LAW REVIEW [Vol. 28:1
boring and uneventful.,,243 Emily and Conrad identified "time" as their
most significant impediment. 244
The students in this study illuminated some of the reasons why so
many lawyers have not conquered their basic writing errors by the time
they graduate from law school. Failing to understand the importance of
writing skills and being unable to manage the competing demands on
their time drove much of their behavior. Lack of experience using
comments and lack of fundamental knowledge about grammar and
punctuation also influenced their behavior. Additionally, problems with
transferring known skills and insufficient self-critical reflection may
have delayed development during the year. A confluence of these
factors contributed to a largely inadequate use of feedback relating to
basic writing skills.
Gains were partially attributable to simply learning how to read,
analyze, and write about the law over the course of the year. Two other
factors played primary roles: engaging in one-on-one conferences with
instructors and developing proofing and editing skills. Students who
became more effective proofreaders decreased the occurrence of some
basic errors. 245 This was particularly true with respect to paragraphing;
it was less true, however, when it came to addressing punctuation and
other sentence-level issues. Students who implemented techniques such
as reading their work aloud,246 reading backwards,247 proofing and
editing for one aspect of their work at a time,248 and editing on paper 249
were more likely to identify some of their errors. Despite these gains,
however, students' chronic errors continued to be evident in their final
work. Thus, this study demonstrates that factors both within and outside
of the students' control contributed to the repetition of basic skills errors
in their writing.
243. Second Interview with David, supra note 37 (transcript at 1-2).
244. Second Interview with Emily, supra note 80 (transcript at 19). Conrad believed not
having enough time and not engaging one-on-one early enough had been the cause of his
writing problems but did not identify future impediments. Second Interview with Conrad,
supra note I (transcript at 18).
245. Second Interview with George, supra note 62 (transcript at 9, 14).
246. Interview with Julie, supra note 43 (transcript at 8, 13).
247. Second Interview with Betsy, supra note 57 (transcript at 15-16); Second Interview
with Ike, supra note 146 (transcript at 9).
248. First Interview with Andrew, supra note 34 (transcript at 17-19); Interview with
Helena, supra note 41 (transcript at 14).
249. Second Interview with Betsy, supra note 57 (transcript at 15-16); Second Interview
with Ike, supra note 146 (transcript at 9-10).

50 QUINNIPIAC LAW REVIEW [Vol. 28:1
acknowledge that the task "is one of their most time-consuming
activities.,,255
Writing instructors are not alone in emphasizing written and verbal
feedback; educators generally regard such commentary--or "formative
assessment"-as one of "the key means by which teachers and learners
can improve performance.,,256 Law students also view prompt feedback
as important to learning legal analysis and other critical skills. 257
Despite this apparent unanimity regarding the value of feedback, the
students' candid reflections should provide instructors with some
impetus to reassess their commenting practices. Even though the
feedback helped these students grow in many ways, and students
generally perceived it to be important, some commenting practices were
largely ineffective with respect to basic technical writing skills.
A. Educational Theories and Practices
Even with the nearly unanimous agreement that commenting is a
key characteristic of first-year legal writing programs, what to say in this
form of assessment-and how to express it-has been the focus of
considerable discussion and scholarship among legal wntmg
professionals. 258 Three generally-accepted pedagogical goals underlie
"backbreaking," and overwhelmingly physically and mentally demanding, presumably
because of the effort involved in grading and commenting on student papers).
255. Grearson, supra note 13, at 147. In most schools, legal writing instruetors also
require students to attend one-on-one conferences regarding their pro/,'Tess in the course. See
SURVEY RESClTS, supra note 4, at 63. The average legal writing instructor reads well over
1400 pages of student work per semester and spends almost 50 hours each semester working
with students in the individual conferenees. Jd.
256. SULLIVAN ET AL., supra note 15, at 171; see also Sn:CKEY ET AL., supra note 15, at
235.
257. SljlLIVAN ET AL., supra note 15, at J04. In the 2006 Annual Law School Survey of
Student Engagement, students who received prompt faculty feedback reported substantially
higher gains in such areas as "thinking critically and analytically," "solving complex realworld
problems," "speaking clearly and effeetively," in addition to "writing clearly and
effectively," and "developing legal research skills." LAW SCH. SURVEY OF STCDENT
ENGAGEMEl\T, ENGAGING LEGAL EDUCATION: MOVING BEYOND THE STATUS QUO 11
(2006), available at
http://lssse.iub.edu/2006 _AnnuaLReport/pdf/LSSSE_2006_AnnuaLReport.pdf (Table 2).
258. See e.g., Kirsten K. Davis, BUilding Credibility in the Margins: An Ethos-Based
Perspective for Commenting on Student Papers, 12 LEGAL WRITING: J. LEGAL WRITING
INST. 73 (2006); Gionfriddo, supra note 12, at 433-43; Grearson, supra note 13; see also
Barnett, supra note 251, at 651 n.l, 653 nn.JO-II and accompanying text (colleeting sources).
Professor Barnett notes that every biennial eonference of the Legal Writing Institute since
2000 has included a workshop on commenting. Jd. at 653 n.ll. This trend also exists at
regional legal writing conferences as well. For example, Maria Perez Crist from the

52 QU[NN[P[AC LAW REV[EW [Vol. 28:1
instructors believe that the "most effective written critiques consist of
copious marginal notes and interlineations, annotating the precise places
within a student's work where specific, constructive criticism is
warranted.,,264 On the other hand, some believe that legal writing
instructors should limit the number of comments to avoid
overwhelming, frustrating or angering students. 265 Students themselves
seem to appreciate comments that are sufficient to identify errors and
tell them how to fix them. 266
Although legal writing instructors generally share the same
pedagogical theories regarding the value of formative assessment, they
do not necessarily share the same practices. This is particularly true
with respect to whether, and to what extent, instructors revise and lineedit
student work in margin and interlinear comments.
Underlying the practice of rewriting and line-editing is the belief
that students learn from seeing how their work could be made more
concise or technically correct. 267 Those who eschew the practice,
however, are concerned that such editing is doing the students' work for
them and that students will not actually learn from the edits. 268 This
concern is rooted in the notion that "[ w ]hen critique consists solely of
pointing out all the student's errors and telling the student how to do the
job in a way the teacher considers 'right,' it leads to empty mimicry,
rather than mastery.,,269 From this viewpoint, the goal of formative
assessment is to "teach students to become editors of their own work,
not the instructor's puppets.,,270
While most instructors comment on organization and analysis,
some refrain from addressing style, grammar, and punctuation in as
much detail. To avoid reinforcing students' "misconception that
the author's analysis of 208 end comments on Penn State first-year composition and rhetoric
courses); Williams, supra note 186 (reviewing research on cognitive development, critical
thinking, and expert thinking),
264. Frank Gulino, Providing Effective Feedback to Legal Writing Students: Practicing
What We Preach, SECOND DRAFT, Aug. 2007, at 7, 12.
265, Enquist, supra note 252, at 1130; see also Amy :-.ieville, Over-commenting-Why Do
We Do It and How Can We Cure It?, SECOND DRAFT, Aug, 2007, at 12, See generally, e,g"
Grearson, supra note 13 (examining the purpose and effect of comments on student papers).
266, See Enquist. supra note 21, at 188, 190.
267, Enquist. supra note 252, at 1159.
268, Id. at 1160-62.
269, :-.ieumann, supra note 261; see also Provenzano & Kagan, supra note 12, at 133­
41(demonstl"dting how "error analysts" use students' writing errors positively to improve
student performance),
270, Enquist, supra note 252, at 1162 (internal quotations omitted),

2009) PHENOMENOLOGY OF ERROR
revIsmg is a tidying-up activity," for example, one instructor limits
"comments relating to technical issues such as spelling, grammar,
punctuation and citation.,,271 Others reason that the primacy of teaching
basic legal reasoning skills, such as "improving critical reading
proficiency, developing strategies to extrapolate ideas from cases, ...
and using the legal principles to support factual analogies," warrants
waiting until a final draft to comment on "presentational issues,
including style and basic writing."m Still others note "students will
create high quality legal documents only when they have learned how to
produce an analysis that is accurate, precise and thereby useful to the
legal community.,,273 Finally, there are those who teach legal writing
who advocate that instructors stop teaching basic grammar and writing
skills altogether and dispense with providing written feedback on student
papers. 274
Some professionals, however, do simultaneously address
"technical" issues such as grammar, punctuation, and style. 275 Those
who do may have to overcome feelings of anger, panic, frustration, and
confusion because they were not hired to teach basic writing skills and
may not have the time, inclination, or resources to do SO.276 To address
these types of writing problems, some instructors create charts tied to
271. Patricia Grande Montana, Sending the Message to Students That Revising Means
Seeing Their Work Through New Eyes, SECOND DRAFT. Aug. 2007, at 6, 6.
272. Barnett, supra note 251, at 659.
273. Gionfiiddo, supra note 12, at 433.
274. In Stewart Harris's, Giving up Grammar and Dumping Derrida: How to Make
Legal Writing a Respected Part of the Law School Curriculum, 33 CAP. U. L. REv. 291
(2004), he argues that the time saved by not addressing basic writing skills and conferencing
with students will provide legal writing faculty the time that doctrinal faculty have to produce
scholarship. In the article, The Quest for Scholarship: The Legal Writing Professor's
Paradox, Susan P. Liemer describes the obstacles presented to legal writing instructors'
scholarly activities by the time spent on student conferences and grading. Susan P. Liemer,
The Quest for Scholarship: The Legal Writing Professor's Paradox, 80 OR. L. REV. 1007
(2001 ).
275. Enquist, supra note 252, at 1138 (reporting that "[w]hile most of the experts
[surveyed] said that they marked errors in grammar, punctuation, spelling, mechanics, and
citation, at least one expert resisted, particularly the grammar corrections, saying he was not
teaching an English class for lawyers"); see also Telfeyan, supra note 13 (describing a
classroom-based grammar contest designed to highlight and teach basic writing skills).
276. Telfeyan. supra note i3 (describing a hypothetical legal writing instructor's
reactions to deficient basic writing skills in first-year students as: "[A]nger ('J wasn't hired to
teach [students] how to compose complete sentences'); panic ('I can't possibly teach them
how to write like lawyers if they can't even write like college graduates'); frustration ('how
am I going to succeed at the job I was hired to do if they don't have a base level of
competence in the fundamentals of writing?'); [and] confusion ('how am I going to deal with
this problem, assuming I'm even supposed to?'».
53

54 QUINNIPIAC LAW REVIEW [Vol. 28:1
specific chapters or sections in books used in their courses, which,
through various coding devices, they refer to when commenting.277
Other instructors "line-edit to show how syntax, word order, and
verbosity can be improved.,,278
Not only has the student assessment scholarship addressed what to
critique in law student papers but it has also addressed how to
communicate the critique effectively. To enhance the students' learning
process, many experts advocate asking students questions, in addition to
or instead of editing or commenting, "to force students to reconsider
both their legal analysis and the way they have communicated that
analysis.,,279 Asking questions presumably "empowers students to take
charge of their own work, and helps them learn what questions they
should be asking of themselves in the writing process.,,280 Imbedding
questions into the substance of critique reflects the recognition that
commenting "is a kind of discourse and is a rhetorical practice,,,281
which mimics the Socratic Method used in case-book classrooms by
initiating a dialogue between the instructor and the student 282
277. Hether C. Macfarlane, Quick Tip: Tips on Teaching Grammar; Providing Feedback
on Grammar and Punctuation Errors, SECOND DRAFT, Spring 2008, at 12, 12.
278. Enquist, supra note 252, at 1139. As one survey respondent noted, "Students want
and deserve to know why something they have written is incorrect, vague, unpersuasive or
grammatically improper." Id.
279. Kearney & Beazley, supra note 263.
280. Kirsten K. Davis, Commenting and Conversation, SECOND DRAFT, Aug. 2007, at
14,14.
281. Davis, supra note 258, at 77.
282. See Kearney & Beazley, supra note 263, at 886. Diseussions regarding the form of
commenting also focus on the technology used when commenting. Current methods of
grading and critiquing range from the traditional hand-written comments on hard-copy papers,
to live conferences, taped comments, electronically typed comments and editing changes,
embedded electronic voice comments, and podcasts. See. e.g., SURVEY RESULTS, supra note
4, at ii, 14 (Question 24). In a 2008 article, Professor Daniel Barnett addressed the pros and
cons of all such methods of traditional and electronic grading and argues that using
technology increases instructor proficiency and is in conformance with today's students'
"technological savvy." Daniel L Barnett, Form Ever Follows Function: Using Technology to
Improve Feedback on Student Writing in Law School, 42 VAL. U. L REv. 755, 757 (2008);
see also Christina R. Heyde & Susan E. Provenzano, E-Grading: The Pros and Cons of
Paperless Legal Writing Papers, 12 PERSP.: TEACHING LEGAL RES. & WRITING 139 (2004)
(discussing the benefits of electronic grading and suggesting ways to overcome drawbacks).
The Fall 2007 issue of The Second Draji was devoted to the subject of "providing effective
feedback." In it, various authors explore the quantity, substance and form of commenting.
For information regarding form, see Leslie Rose, E-Commenting: Pros and Cons, SECOND
DRAFT, Aug. 2007, at 1 and Karen Sneddon, The Potential ofPod casts, SECOND DRAFT, Aug.
2007, at 11.

2009] PHENOMENOLOGY OF ERROR
As the literature demonstrates, different methods of providing
feedback reflect diverse pedagogical goals. What unifies commenting
practices and formative assessment is the theory that students will
develop as writers because of the feedback they receive. Underlying the
practice of addressing basic skill problems in margin or interlinear notes
is the idea that students will develop the skill to overcome such problems
in the future. The conduct of students who participated in my study
suggests that these notions are not always reflected in reality.
B. The Reality ofStudent Perceptions and Responses
The interviewees in the present study revealed that students do want
to turn in high-quality work and therefore appreciate it when their
instructors mark specific errors in margin or interlinear notes. The study
also suggests, however, that there are many potential pitfalls to
commenting on basic writing skills.
If the goal of commenting is to (1) advise students of the extent to
which they are meeting the goals set out for them, (2) give students
insight on how the intended reader would respond to their work, and (3)
motivate the students to change their approach to writing in the future,283
this study indicates that instructors are not always successful in meeting
their goals-at least with respect to addressing basic writing skills. The
only comments these students responded to regarding these types of
problems were margin and interlinear comments that identified technical
errors and recommended appropriate changes. Students also suggested
that they would like the comments to spell out the governing rules.
Although there were few instances in which the instructors
imbedded questions in the comments, student reactions indicated that
such comments would not have necessarily "empowered" them to "take
charge of their own work.,,284 The fact that some students stopped
reading the class assignments and did not use textual resources
effectively suggests that they did not always fully engage in the learning
process. In fact, as demonstrated by their failure to consult outside
resources when directed to, they often displayed an unwillingness or
inability to assume control ofthe learning process.
283. See supra note 259 and accompanying text.
284. See supra note 280 and accompanying text. This observation is supported by a
previous study regarding students' reactions to instructor commenting practices. See infra
notes 289-293 and accompanying text.
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56 QUINNIPIAC LAW REVIEW [Vol. 28:1
The finding that students generally overlooked comments directing
them to outside sources for assistance with grammar, punctuation, and
style is also important. The failure of this particular method of
encouraging self-reliance presents the writing instructor with a
quandary: when instructors edited the students' work, students made the
changes automatically, without necessarily learning why the original
was incorrect; when the instructors did not, the students failed to engage
in self-help. In neither instance did the students make substantial
progress in overcoming their problems.
The students' conduct was logical from their point of view. They
were harried and overwhelmed. They were engaged in a new form of
reading, writing, analysis, and even research and citation. They
understood that grades in their other classes depended on their
performances on one or two exams but failed to fully comprehend the
connection between LARW reading assignments and their performance.
Even when they did understand, they faced the choice of learning the
rules of grammar, punctuation, or style-perhaps for the first time-and
keeping abreast of other curricular demands. Objectively, their choices
may have made sense.
The related finding that students did not review their first semester
comments before sitting down to write second semester is important for
a number of reasons. First, although students had the benefit of a
semester's worth of written comments before they tackled their secondsemester
projects, they did not necessarily take responsibility for
determining whether telling patterns existed in their instructor's previous
praise or criticism. For that reason, the students' failure to use firstsemester
comments contributed to the repetition of technical errors
during the second semester. Legal writing instructors should be
cognizant of this behavioral tendency as they grade and comment on
their students' papers and develop appropriate methods for countering
such self-defeating tendencies. One way to do so is to create secondsemester
projects that direct students to earlier assignments and require
self-assessment; ask students to evaluate their strengths and weaknesses
as writers and to reflect on how they addressed instructor comments
during the first semester. Another way is to require students to analyze
the comments and determine whether certain criticism is repeated.
Given the demands of the first year, students might need the time and
opportunity to think about how they are learning.

2009] PHENOMENOLOGY OF ERROR
Additionally, instructors who wait to address technical skill issues
until the final project 285 may not be providing timely and sufficient
notice to their students that basic skills are important and, when
appropriate, that particular students are lacking these skills. Some
students appeared to hold the contradictory notion that they could be
strong writers even if their grammar and punctuation skills were weak.
The students' earlier education experiences shaped such misconceptions,
which may have seemed natural in view of that experience.
Nevertheless, the students' perceptions are noteworthy because a view
that writing well is independent of technical skills can lead to the
misapprehension that substance or function is unrelated to form.
Moreover, as the students in this study demonstrated, that view created a
disinclination to devote time to basic skills. Unless students carefully
read and use final-draft comments, which the interviewees did not, they
may not have sufficient opportunity to tackle basic weaknesses if
instructors do not address them early enough.
For certain students, managing their expectations appeared to be
vital to their ability to use comments effectively. Since they were
unaware that their instructors had not noted all instances of a particular
error, they did not know to search for that error in unmarked areas. Not
surprisingly, these students reacted negatively to learning their teacher's
approach after the fact. 286 To discourage mimicry and dependence, and
encourage self-development, independence, and ownership, writing
instructors should clearly communicate their commenting methods and
intentions and their expectations regarding the students' responsibility
for finding and correcting their own errors. Without this clear guidance,
the interviews revealed that few students approached the comments
analytically. Instead of making optimal use of the comments, they made
the suggested changes, at least in part, because "if it's what you're being
graded on, and what you were told that you missed on, it would be
foolish to not directly apply" the comments. 287
Although much has been written regarding providing effective
feedback, little empirical scholarship has focused on how students
285. See supra notes 272-273 and accompanying text.
286. One student complained that his instructor failed to return papers early enough to
make the comments useful in the revision process. See Second Interview with Ike, supra note
147 (transcript at 5). Because of the delay, he felt that he did not know the grading criteria.
ld.
287. ld. (transcript at 20). In Conrad's view, his professor's comments were "the Bible,"
which he had to address if he wanted to do well. Second Interview with Conrad, supra note I
(transcript at 6).
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58 QUINNIPIAC LAW REVIEW [Vol, 28:1
actually view that feedback or engage in the revision process. 288 Ann
Enquist's unique study of student reactions to critiques of their legal
writing papers produced fmdings that this study verifies. 289 Students in
her study identified end comments, in-depth explanations, examples, and
positive feedback as essential to effective critiquing. 29o
On the other hand, students reacted less favorably to coded or
labeled comments and comments phrased as questions. 291 Moreover, the
number of comments did not necessarily correspond with the
effectiveness of the critique: more comments were not necessarily better
than fewer. 292 Like the participants in my study, students appeared to
want comments that identified problems and suggested solutions.293
Thus, Professor Enquist's research findings, like those of this study,
indicate that student reactions to professor comments only partially
support the literature on effective critiquing.
The students' use of comments in my study was also consistent
with the behavior of students in a study comparing how novice and
experienced writers revise their work. 294 Unlike expert legal writers,
who "see revision as an opportunity to address overall changes, to revisit
their original rhetorical decisions, when they revise," the study
suggested that new legal writers "are assembly line revisers" who focus
on micro-level details. 295 The majority of new legal writers focus on
individual sentences, word choice or word order, spelling, and
grammar. 296 The degree to which legal writing instructors make
suggested grammar, punctuation, sentence structure, and word-choice
alterations in margin or interlinear notes may compound this tendency
by providing students with a means for "assembly line" revising.
Comments on micro-level issues may, in fact, distract the students'
attention away from large-scale analytical issues, lull them into believing
288. For a qualitative study regarding how university students approach writing. scc
Lavelle & Zuercher. supra note 94; see also McCune, supra note 96, at 258 (reporting on a
qualitative study of how psychology students approach writing and view feedback).
289. See Enquist, supra note 21.
290. Id. at 155.
291. [d.
292. [d.
293. Enquist, supra note 21, at 155.
294. Christopher M. Anzidei, The Revision Process in Legal Writing: Seeing Better to
Write Better, 8 LEGAL WRITING: J. LEGAL WRITING INST. 23 (2002) (reporting the results of
an empirical study regarding how novice and expert legal writers approach revising their
work); see also Grearson, supra note 13, at 168-69.
295. Anzidei, supra note 294, at 40.
296. [d. at 37-38; see also Grearson, supra note 13, at 168-69.

2009] PHENOMENOLOGY OF ERROR
that they need only address the specific revisions indicated to get better
grades or become more adept legal writers, and encourage the notion
that legal writing instructors will address all basic skill problems.
The student interviews justified the concern that "the comments of
even well-intentioned instructors may serve to diminish the student's
agency over the writing itself. For example, instructors who actually rewrite
passages for students or who cross out a student's own writing are
essentially removing a degree of ownership over the paper from the
students.,,297 The interviews revealed that when providing feedback on
small-scale writing issues, such as word choice, sentence structure,
grammar and punctuation, instructors should seek a balance between
acting as scribe and modeling advanced writing skills. The students' use
of feedback on small-scale issues illustrates the reason that students in
other studies preferred "comments that actually revised and edited the
student's writing,,,298 and supports the notion that students may engage
in "empty mimicry" when it comes to detailed sentence-level
comments. 299
It is important to understand that the behavior of the students in this
study is not unusual. Much of what the students in this study reported
about their learning process is consistent with a study of first-year
psychology students from one large Scottish university about the
development of their essay-writing skills. 300 In that study, students
reported finding the feedback they received on their essays reasonable,
though a few had some trouble interpreting or reading the feedback.30l
These students generally gave the impression, however, that they had not
paid much attention to the feedback and that it had not changed their
conceptions about their writing. 302
Like the Washburn students, the Scottish students paid little
attention to information and advice contained in handouts on essay
writing, even though the handouts contained relevant and potentially
useful information. 303 What appeared to influence their development
297. Di Desidero. supra note 251.
298. Enquist, supra note 21, at 178.
299. See supra notes 265-267 and accompanying text; see also Grearson, supra note 13,
at 159 (noting the danger that too much "editing" might result in students becoming "typist[s].
mechanically entering the corrections of another writer who has already mastered the[]
conventions").
300. McCune, supra note 96.
30 I. ld. at 268.
302. !d.
303. ld. at 270.
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60 QUINNIPIAC LAW REVIEW [Vol. 28:1
more than written feedback or other written guidance were individual
discussions with their tutors. 304
The students' conduct in my study also reflects findings made in
other similar studies. For example, in The Writing Approaches of
University Students/ 05 the authors observed that when "the student's
goal is just to comply with task demands, the learning activity involves a
low level of cognitive engagement (e.g. memorizing or repetition) and a
superficial, linear outcome (listing or organizing), a surface
approach.,,)06 The study categorized the writing approaches of some
students as "Spontaneous-Impulsive" or "Procedural," where the
"Spontaneous-Impulsive approach represents overestimating skill and
fear of fully dealing with what the writer perceives as limitations," and
the "'Procedural' approach involves a method-driven strategy based on
strict adherence to the rules and a minimal amount of involvement ....
The procedural approach reflects wanting to please the teacher rather
[than] the intention to communicate or refiect.,,307 Students also
exhibited a "Low Self-Efficacy" approach, which the authors described
as a "highly fearful approach based on doubting ability and thinking
about writing as a painful task.... These writers appear needy:
'Studying grammar and punctuation would greatly improve my
writing. ",)08
Many of the participants in my study similarly exhibited low levels
of cognitive engagement, resulting in procedural, spontaneousimpulsive,
and/or low self-efficacy approaches to writing. As
demonstrated by their neglect of resources such as their citation,
research, and writing texts, they too attempted to complete some tasks
with minimal intellectual involvement. When it came to addressing
basic writing errors, they revised their work to please their instructors
rather than because they understood the underlying need for the change
indicated.
304. McCune, supra note 96, at 269.
305. Lavelle & Zuercher, supra note 96.
306. Id. at 374.
307. Id. at 377. The authors define five characteristics reflected in the writing
approaches of college students, two of which were not reflected in the approaches of the
Washburn students. The '''Elaborative' [approach] is marked by a search for personal
meaning, self-investment, and by viewing writing as symbolic, a deep personal investment."
/d. at 376. The "Reflective-Revision" approach is described as "a deep writing process based
on a sophisticated understanding of revision as a remaking or rebuilding of one's thinking."
Lavelle & Zuercher, supra note 96, at 376.
308. Id.

2009] PHENOMENOLOGY OF ERROR
Moreover, the participants demonstrated a lack of metacognitive
reflection-that is, planning and evaluating one's own thinking
processes, and "thinking about how to approach a task this time ... [or]
how to do better next time,,309-during their legal writing experience.
Metacognitive reflection assists students in bridging skills and
knowledge within content and across disciplines. 31o Of course, the
interviews themselves required students to engage in exactly that type of
deliberation. Interestingly, several of the students appeared to have
enjoyed and learned from both my questions and their own answers.311
Legal writing instructors who have similarly observed the
persistence of errors in their students' papers face an obvious
conundrum. If they "edit" their students' work to correct basic skill and
style problems, they may encourage dependency and students may
"mindlessly" make the changes without fully understanding the problem
or the correction. If they expend the effort creating guides and other
methods aimed at fostering student independence and control, the
students may not use them. If they comment without providing
corrections, students may ignore them. Finally, if they refrain from
commenting on basic style and skill problems altogether, they may
unwittingly reinforce the notion that one can write well notwithstanding
weakness in those areas.
The response to these difficulties is not to abandon commenting
practices. Commenting on student papers remains the most effective
tool in the writing instructor's arsenal. Instructors who comment on
basic skills, in addition to legal analysis, however, might consider
revising their practices. For example, although I continue to line edit
and make margin comments about style and basic skills, I have
substantially reduced the number of such comments I make. 312 I stress
that overcoming basic skills issues is the students' responsibility, with
which I will assist them. I also assign homework problems relating to
309. FOGARTY ET AL., supra note 185, at 87.
310. ld. at xviii. "Metacognition.... is, being aware of one's own thinking and learning
processes . . .. Positive transfer of learning is dependent on the learner making appropriate
connections between existing knowledge and knowledge of the new situation." LEBERMAN
ET AL., supra note 185. at 15.
311. Conrad, for example, characterized the interview as a "good exercise";
"uncomfortable" but "helpful." Third Interview with Conrad. supra note 58 (transcript at 13).
312. Although I always informed my students in advance regarding the factors that
would influence their grades, including basic skills, and also advised them that I would not
mark all examples of a particular error, knowing how students use comments has led me to
reiterate that any line edits are simply examples of how to fix recurring errors. I do this in
writing and reinforce the message in class.
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62 QUINNIPIAC LAW REVIEW [Vol. 28:1
grammar, punctuation, and style and hold in-class workshops on such
issues. Devoting some class time to issues of style, grammar, and
punctuation is key to reinforcing the message that "form does matter."
Otherwise, students might well be surprised to learn that their instructor
considers such matters important. 313
Comments in the form of questions and comments directing
students to other resources continue to have a place in commenting
practices. To be most effective, instructors might have to probe how
specific students use the comments. Having students answer the
questions, verbally or in a follow-up writing assignment, in-class or
individually, might make the questions more effective. Similarly,
requiring students to complete exercises or other activities related to the
resource they were directed to might make the lesson more concrete.
Regardless of the degree to which any legal writing instructor
focuses on basic writing skills, students must understand that the
ultimate goal of the first-year course is finding and analyzing the law,
and then reducing that analysis to writing. They should further
understand that law school, and ultimately the profession, demands a
certain proficiency in basic writing skills and their responsibilities
extend beyond cleaning up specifically identified errors.
Knowing how many of the students approached their legal writing
course, coupled with research regarding how problems with transfer
impede skill development, is changing my teaching and influencing
others in Washburn's LARW program. I confront self-defeating habits
directly and design exercises to facilitate transfer of learning. 314
I
encourage self-critical evaluation of study and writing habits. 315
313. I have always assigned homework and devoted some class time to such issues.
What I learned from the students, however, has enabled me to address any erroneous
perceptions students might possess regarding the importance of these issues to their LARW
perfonnance and beyond more effectively.
314. For example, I have created quizzes and exercises tied to current and past reading
assignments. At the beginning of the second semester. I require students to review my firstsemester
comments, and submit a memorandum analyzing their own strengths and
weaknesses, and assessing their approach to writing. I have also developed peer-grading
exercises that require students to reflect on their own work after they have assessed another's.
Using guided reflection, these exercises promote the transfer of skills and knowledge between
writing projects and semesters, encourage the students to think about their experiences, and
enhance their metacognitive reflection.
315. David admitted that he had not reviewed first-semester comments though he
acknowledged that it would have been a "good idea." First Interview with David, supra note
37 (transcript at 23). He opined that it would be helpful to have a fonn to fill out after first
semester to create a customized checklist of what each student needs to work on. /d.

2009] PHENOMENOLOGY OF ERROR
This study is also changing the way I develop my major
assignments each semester. Knowing how some students approach their
studies has allowed me to develop a more realistic and coordinated
method of teaching legal analysis, research, and writing. Using stronger
scaffolding techniques,316 I divide my assignments to develop increasing
independence and autonomy and to establish the students' ownership in
the results. 317 Some students have already expressed appreciation for
my current method of problem development. Only time and further
study will tell whether these efforts are successfuL
The candid reflections of the students in this study provide legal
writing instructors with insight into how students actually use feedback.
They also provide other law-school faculty with important information
regarding preconceptions that some first-year students bring to their
academic experience and how these preconceptions shape their approach
to learning. Finally, the students provided a unique perspective into the
law-school experience from those who live it today.
C. Institutional Responses
The 2008 Law School Survey of Student Engagement included
questions regarding basic-skill development, including legal writing.
The survey reports that 37% of the student respondents wished there
were more opportunities to do practice-based legal writing during their
studies.3!8 Most ofthe students I interviewed would agree.
316. Scaffolding techniques in education are designed to "facilitate a student's ability to
build on prior knowledge and internalize new information" by progressively building on
acquired knowledge with the goal "for the student to become an independent and selfregulating
learner and problem solver." Rachel Van Ocr Stuyf, Scaffolding as a Teaching
Strategy (Nov. 17, 2002), http://condor.admin.ccny.cuny.eduJ-group4/; see also Lindsey
Lipscomb, et aI., Scaffolding,
http://projects.coe.uga.eduJeplttlindex.php'hide=Scaffolding#Whacis_Scaffolding.3F (last
visited July 14, 2009). I do this by requiring and commenting on the written analysis of only
one issue in a rwo-issue problem at the "draft" stage, for example. This has rwo benefits.
First, by not having to address rwo issues at the draft stage, students have more time to
research and analyze each of the issues. Second, because I do not comment on the second
issue, students must apply the comments I make on the first issue while writing the second
issue.
317. The methodology this study employed can be used to evaluate the effectiveness of
teaching methods in any learning context for educators who are interested in testing their
teaching in light of the Carnegie Study on legal education and concepts elucidated in Best
Practices. See supra note 16 and accompanying text.
318. 2008 LSSSE SURVEY, supra note 197, at 10.
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64 QUINNIPIAC LAW REVIEW [Vol. 28:1
The arguments for "writing across the curriculum" and increased
instruction in law-practice skills have been made. Jl9 Law schools
nationally are responding in a variety of ways. To address basic writing
skills, for example, law schools are increasingly seeking the assistance
of full or part-time "writing specialists" to supplement legal writing
programs. 320 Through individual conferences or small group workshops,
writing specialists can assist students with their grammar, punctuation,
and usage problems. In this author's opinion, writing specialists are
essential to overcoming basic skill deficiencies. The experience and
behavior of students in this study indicated that much of the effort legal
writing instructors expend on addressing these issues might be
ineffective because students are unable to learn from the comments their
instructors make. 321 Because many were expected to learn grammar and
punctuation skills by reading and writing, but did not do much of either,
it may be unfair and unrealistic to expect them to do so; they simply do
not have the background.
Institutional responses, such as hiring writing specialists, instituting
"writing across the curriculum," developing new skills-oriented
instruction, and offering more upper-level writing courses could
potentially require significant institutional investment. Others would
require less. For example, providing materials for the students to read
before they begin their studies, and designing orientation-week activities
to emphasize the importance of writing to the profession, would be
easier to implement. Having alumni and upper-level law students
address the critical importance of writing skills during orientation week
and having these individuals provide concrete examples and exercises
designed to reinforce the message would also be cost-effective methods
319. See supra notes 15-16. Articles addressing writing skills courses in the law school
curriculum include Kenneth D. Chestek, McCrate (In)Action: The Case for Enhancing the
Upper-Level Writing Requirement in Law Schools, 78 U. COLO. L. REV. 115 (2007); Roy M.
Mersky, Legal Research Versus Legal Writing Within the Law School Curriculum, 99 LAW
L1BR. 1. 395 (2007); Michael R. Smith, Alternative Substantive Approaches to Advanced
Legal Writing Courses, 54 1. LEGAL Eouc. 119 (2004); Susan E. Thrower, Teaching Legal
Writing Through Subject-Matter Specialties: A Reconception of Writing Across the
Curriculum, 13 LEGAL WRlTlNG: J. LEGAL WRITING INST. 3 (2007), and other articles
addressing legal writing curriculum and instruction in that volume.
320. In 2008, 43 law schools reported employing a full or part-time writing specialist and
31 reported having a fonnal writing center in the law school in connection with their legal
writing programs. See SURVEY RESULTS, supra note 4, at 16-20 (Questions 28-31).
321. For example, although Helena felt better equipped to address her basic skill errors
after her LARW class, she stated: "I would like more experience and training and someone to
guide me. 1 feel like I need that." Interview with Helena, supra note 41 (transcript at 17).

2009] PHENOMENOLOGY OF ERROR
of addressing first-year students' misperceptions before it is too late for
them to adjust their approach to learning.
To counter early misconceptions, which can affect performance
outcomes in legal writing courses and beyond, instructors of other firstyear
courses can reinforce the connection between writing, the law, and
law practice. Briefly addressing the writing-based origin of the disputes
that form the basis of so much discussion in case-book classrooms, and
not merely the substantive legal principles derived from them, for
example, can emphasize the importance of writing skills and error-free
writing. To increase students' motivation to tackle difficult, and frankly,
unexciting technical writing issues, non-legal writing faculty can remind
students of the potential consequences of poor writing choices
throughout their legal education. At the very least, law school faculty
should confront student misperceptions upfront-even before the students
have articulated them. The failure to do this can leave students
unprepared for the legal writing curriculum or the comments they will
receive on their early legal writing efforts, and less able to benefit from
both.
V. CONCLUSION
All of the study participants made significant gains in learning how
to read, analyze, and communicate the law. The students also made
progress in addressing their writing skills. Although all students ended
the year with evidence of their individual weaknesses present in their
final work, most had grown in their approach to writing. My extended
discussions with these ten students led me to believe that those who had
the most persistent basic skill errors did not understand the underlying
rules applicable to their weaknesses. They did not know punctuation
rules, they could not recognize the passive voice or a nominalization,
and they could not discern the ambiguity in their own writing. Sending
them to a grammar and style manual, without guidance, was largely
ineffective. One-on-one lessons were more effective.
The lack of instruction and practice in certain basic writing skills,
enough to overcome longstanding weaknesses in students' writing skills,
accounts for some of the phenomenon of error in legal writing. The rest
may be attributable to the natural difficulty of the first year of law
school, the failure to understand the demands of the profession, and
problems with transfer of skills in the learning process.
Addressing the phenomenon of persistently poor basic writing
skills must occur in the legal writing classroom. If that is the only law­
65