Pre writing

PRE-WRITING:
WHAT, WHEN, WH
Y, & HOW
Laura P. Graham &
Miriam E. Felsenburg
Wake Forest University School of Law
(c)2012. All rights reserved. Miriam E. Felsenburg & Laura P. Graham

WHY our focus on pre-writing?
O In 2007, we set out to explore why
beginning legal writing seems to be so
difficult for so many students.
O Through this study, we identified a
number of contributing factors, which
are reported in our first article:
O Beginning Legal Writers In Their
Own Words: Why the First Weeks
of Legal Writing Are So Tough and
What We Can Do About It, 16 Legal
Writing: J. Legal Writing Inst. 223
(2010).

The one conclusion that really captured
our interest was this:

Students entered legal writing believing
that they would be taught a step-by-step
approach to legal writing – a “template”
or “formula” -- and resisted the difficult
“inside-out” critical thinking that is
integral to effective legal analysis and
writing. Put another way, they focused
far more on the product than on the
process.

In the next phase of our work, we began to
explore how legal writing professors can
give our students a “better beginning” by
helping them shift their focus from the
product of legal writing to the process of
legal analysis and legal writing; in other
words, how we can increase their
willingness to engage in “inside-out”
thinking.
See A Better Beginning: Why and How to Help
Novice Legal Writers Build a Solid Foundation
by Shifting Their Focus from Product to
Process, 24 Regent U. L. Rev. 83 (2011).

In that article, we identified a number of
teaching goals toward this end; the two that
have emerged to us as key are:
1. Encouraging our students to be more
active metacognitive learners.
2. Moving more slowly at the beginning of
the course, to allow students time to
learn and practice the process of legal
analysis.
That’s where we believe pre-writing comes
into play. (c)2012. All rights reserved. Miriam E. Felsenburg & Laura P. Graham

WHAT IS PRE-WRITING?
O First, what isn’t pre-writing?
O Organizing the points of an analysis
O Outlining a memo or brief
O Writing a rough draft of a memo or brief
O So, what is pre-writing?
O A concrete, step-by-step approach to
the “inside-out” work that students must
do, from the moment they receive an
assignment, to arrive at the best
answers to the questions the
assignment raises.

O Pre-writing emphasizes the need for
students to alternate between taking a
wide view – brainstorming and
generating ideas without censoring – and
narrowing their focus in light of the
requirements of the assignment.
O Pre-writing allows (and requires)
students to tap into their metacognitive
skills (perhaps long
dormant), encouraging them to pause
frequently to assess their own progress.
O Pre-writing allows time for students to
focus more on the process than on the
product.(c)2012. All rights reserved. Miriam E. Felsenburg & Laura P. Graham

issue holding conciseness
parenthetical
short answer caption
under-does-when discussion
roadmap rule statement
transition point heading
factor test IRAC landscape
reasoning
TREAC mandatory authority rule
conclusion policy
precision analogy
clarity
syllogism synthesis
citation thesis sentence
passive voice balancing
test
elements test counter-analysis

(c)2012. All rights reserved. Miriam E. Felsenburg & Laura P.
Graham

THREE STAGES OF PRE-WRITING
1. Getting your bearings.
2. Locating and reading the
relevant authorities.
3. Refining and analyzing the
narrow issues.
Each stage begins with
broad, uncritical thinking and
exploring and proceeds toward a
narrower view.
©2012. All rights reserved. Miriam E. Felsenburg & Laura P. Graham

Stage 1: GETTING YOUR
BEARINGS
O Step 1: Understand the
story.
O a broad step
O Step 2: Understand your
assignment.
O a narrowing step

UNDERSTAND THE STORY
O All legal problems begin with a story.
So, this should be an intuitive way for
students to begin pre-writing.
O Students should allow themselves to
brainstorm: Who are the key players in
this story? What’s the timeline of the
story? What happened here to bring the
players to the point of asking a legal
question? What questions occur to me as
I read this story?
O Students should make notes on the
story (writtenrights reserved. Miriam E. Felsenburg & Laura P. Graham
(c)2012. All
notes, not mental notes!).

What does this step look like?
O In your packet, locate the Memorandum
from Alice Morrison to Associate Attorney
LAWR-E.
O Read the Memorandum uncritically.
O Look at the information about the Segway
i2® provided in your packet.
O Brainstorm about the story, and take notes
on your thoughts and questions at this
early stage.
O Feedback?


SAMPLE NOTES ON STORY
O Location of events: Intersection in downtown
Salem, Graham
O What happened:
O Client Byrd going to drugstore on neighbor’s
Segway.
O Went through red light and got ticket for violating
Graham’s red-light statute.
O Initial questions:
O What’s a Segway i2?
O What kinds of things does it have in common with
automobile?

Sample Notes from Step 1
O Segway i2®
O Weighs 105 pounds (much less than
car)
O Goes up to 12.5 mph max (much
slower than max speed of car)
O 19 x 25 inches (much smaller than
smallest car)
O Operated by 2 battery-powered motors
(no combustion engine, no gas)
O Holds only one person (car can hold up
to 10)

UNDERSTAND YOUR ASSIGNMENT
O This can help rein in overbroad thinking.
O What can students learn from the assigning
memo (e-mail, etc.) that might help shape the
course of their work?
O What kind of document am I being asked to
produce?
O Who is the intended audience?
O What is the expected tone?
O What might be the expected length?
O What is the urgency of the assignment?
O Are there any limitations on what issues I need to
analyze?

O Reread the Memorandum from Alice
Morrison to Associate Attorney
LAWR-E.
O What can you learn about your
assignment that might help shape
your work going forward?
O Make notes about what you learn.
O Feedback?


Sample Notes On Assignment
O Date of Assignment: May 30, 2012
O Trial date: June 25, 2012
O Complete Assignment by: June
11, 2012
O Specific Document Requested: Memo to file
O Intended audience of document: Senior
Partner
O Tone of Document:
Objective, formal
O Expected length: Fairly short
O Jurisdiction: reserved. Miriam E. Felsenburg & Laura P. Grahamof
(c)2012. All rights State
Graham

Stage 2: Locating & Reading
the Relevant Authorities
O Step 1: Formulate a research plan.
O Step 2: Conduct your research and
preliminarily assess what you find to
identify the most likely relevant authorities.
O Step 3: Closely read and assess the
relevant authorities.

c)2012. All rights reserved. Miriam E. Felsenburg & Laura P. Graham

Step 1: Formulate a research plan.
O Brainstorm about what questions you
hope your research will answer, and write
them down.
O a broad step
O Identify any limitations on your
research, and write them down.
O a narrowing step
O Write down a research plan, and keep it
handy as you work so that you can adjust
it as necessary.
O another narrowing step


O In the Segway story, your brainstorming session
might generate the following written list of
questions:
O Are there any cases that discuss the definition of an
automobile and why it is a “vehicle” under the red-
light statute?
O Are there any cases that discuss whether a Segway
is a “vehicle such as an automobile” under the
statute and why or why not?
O Do any cases discuss the application of the red-light
statute to other vehicles? (Here you might actually
jot down some other vehicles –
mopeds, bicycles, baby strollers, skateboards, etc.)

O Then you might narrow your research focus by
writing down the following:
O The assignment involves the interpretation of a
statute, so the statute should be among the very
first authorities you consult, if not the first;
O The issue is governed by state law, so don’t
spend time researching federal law;
O The decisions of Graham courts are mandatory
as to your issue, so consult any relevant Graham
cases early, to see whether there is already a
case that directly answers your question.

O And you might wind up with a written research plan
that looks something like this:
O Look for Graham cases that discuss whether Segway
is vehicle such as auto under red-light statute.
O If none, look up Graham red-light statute; does it
define vehicle such as auto and does definition help
me?
O If not, go to secondary sources.
O Look for Graham cases about other vehicles
discussed in connection w/red-light statute.
Possible vehicles to look for:
moped, motorcycle, skateboard, bicycle.
O Look for Segway cases from other jurisdictions.
O Look for cases in other jurisdictions about other
vehicles (see above list).

Step 2: Conduct your
research, keeping good notes.
O Have a carefully constructed method for
keeping a record of your research. (We’ll offer
some templates for beginning researchers in
our handbook.)
O Include “unhelpful” authorities in your
record, so you won’t find yourself revisiting
them.
O Don’t get lost in “database heaven”!
O Periodically pause to skim the authorities
you’re finding.
O Begin preliminarily assessing and organizing
the relevant authorities.

Step 3: Carefully read the authorities.
O Some keys to effective reading:
O Read actively.
O Read each authority once uncritically (a broad
step -- no filtering or censoring yet).
O Read each authority again with a narrower
focus, this time making a separate document
recording the helpful information
(rules, factual similarities, etc.) from the
authorities.
O As you do this, paraphrase to confirm that you
understand the material. (Don’t just cut and paste!)
O Pause periodically to monitor your reading.

O Find the two cases in your packet:
O Vreeland v. Graham
O Monroe v. Graham
O Read the cases, taking notes in a format that is
helpful to you. Identify what you believe are the
key aspects of each case that will help answer the
question posed by your assignment.
O Feedback?


Stage 3: Analyze the Narrow Issue(s)
O For each narrow issue, construct a chart, bullet
list, etc. showing how the authorities you’ve read
relate to that issue in light of the facts of your story.
O a narrowing step
O Refine your narrow issue(s) based on your careful
reading. Write down each narrow issue.
O a narrowing step
O Review everything you’ve done so far, to be sure
you aren’t “missing” something.
O a broad step -- opening it back up one final time
O Determine how you will answer the narrow issue(s).
O the final narrowing!


Automobile Child’s scooter Moped Segway i2®
(Vreeland) (Monroe) (Byrd)
size big small not addressed 19 x 25 in
speed up to 100 mph Very slow – no 15 mph max (but 12.5 mph max
impediment to much quicker than
crossing vehicular child’s toy)
traffic
weight at least a ton very light – not less than 100 105 pounds
capable of causing pounds (but much
serious damage heavier than child’s
toy)
operation internal no motor – rider has motor – 2 small battery-
combustion engine must make contact requires no contact operated motors;
with ground between rider & no contact betw
ground; usually rider & ground
self-propelled self-propelled?
capacity 1-10 passengers 1 passenger 1 passenger 1 passenger
danger to serious danger no danger – too presents danger to presents danger to
vehicular traffic light and too slow crossing traffic crossing traffic
result subject to statute not subject to subject to statute;
by statute’s own statute; presence presence of motor
terms of motor not not determinative
??????
determinative


Now students can begin the
writing process!
O This is the first time the students should
be thinking in any detail about what the
final written product will look like.
O When they are confident about the
content of their analysis, they can focus
more easily on organization, format, and
style.
O IRAC seems very intuitive when students
have done the “inside-out” thinking for
themselves.

WHAT MUST HAPPEN TO ALLOW
FOR ADEQUATE PRE-WRITING?
O Students need time at the beginning of
the semester to practice pre-writing.
O Students need much feedback at
frequent intervals, so they can adjust
their pre-writing process.
O Students need to see how pre-writing
works in a number of different scenarios.
O This may require significant adjustments
to the way we have traditionally structured
our semesters.

ANECDOTAL EVIDENCE OF THE
BENEFITS OF PRE-WRITING
O As to the quality of the final product:
O Much better in terms of substance.
O Typical struggles as to structure and style.
O As to the quality of the students’ overall first-
semester experience:
O Greater confidence.
O Higher satisfaction with course.
O Increased ability to recognize and move past
obstacles on their writing journey.


Sample student comments
O “Professor Graham is awesome at
breaking things down into simple steps that
are very easy to follow.”
O “[Professor Graham] takes the time to
break difficult tasks into simple smaller
parts.”
O “I liked that Professor Graham used the
Goldilocks principle for covering material:
not too fast, not too slow, but just right.”
O “We moved slowly, but that helped a lot.”
(
c)2012. All rights reserved. Miriam E. Felsenburg & Laura P. Graham

Stay tuned!
Available Spring 2013!

The Pre-Writing Handbook:
A Step-by-Step Guide

by Laura P. Graham & Miriam E. Felsenburg
Wake Forest University School of Law

Published by Carolina Academic Press
700 Kent Street, Durham NC 27701 800-489-7486
www.cap-press.com


Pre writing

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