Problem Sovling and Advocacy: Two Seperate Skills
by
Ronald Benton Brown

Law students generally find legal writing to be frustrating and confusing. But why? Before entering law school, they should have mastered the fundamentals of effective writing: Always have a good introduction, tie each paragraph to the next with an effective transition, warn the reader what's coming, emphasize critical factors by repetition, and so on. However, when students attempt to apply these principles to legal writing exercises, particularly in the context of exam writing, the results often are disappointing. I believe the problem involves trying to teach two different skills simultaneously, but without differentiating between them, particularly in substantive courses. I identify these two skills as problem solving and advocacy.

Problem solving is the process of logical deduction. Like the good detective, we start with the question posed and proceed to follow clues to the solution. We identify the issues, ferret out the legal rules and principles, and then apply them to the facts to reach conclusions. We must keep an open mind and consider all possibilities, even when they lead to a dead end. Once we have completed that process, tied up all the loose ends, and exhausted all the leads, we reach the logical conclusion and realize how the problem should be solved.

What should students do with the solution? Perhaps the assignment is to explain how the answer was reached. In that case, the student should merely reveal the solution process as it occurred. However, if the student wants to convince the reader that the answer was reached correctly, he or she should evaluate the audience and determine how best to reach it, get and hold its attention, and make the conclusions understandable and compelling. In other words, this is the time to use the good writing skills that the student should have brought to law school. A good introduction is needed. Transitions must hold the readers' interest and prepare them for what comes next. Important points must be emphasized. Repetition may be used for emphasis, but the style cannot be boring and repetitive without risking losing the reader's attention. Unnecessary verbiage should be eliminated. This is the process of advocacy.

Lawyers engage in advocacy in many situations: writing letters to counsel their clients; writing memos to the file, the senior partner, or to the court; writing trial or appellate briefs; or writing law review articles. In all of these, the lawyer is trying to convince someone. However, what we often fail to emphasize, because it may seem so obvious to us, is that before advocacy is possible the lawyer must have something to advocate, i.e., the answer to the problem. That is why good advocacy can take place only after the problem solving has been completed.

Students have difficulties when they are unsure whether to apply problem-solving or advocacy skills. The problem may best be illustrated by that icon of first-year law school, IRAC. IRAC is a problem-solving strategy. By proceeding methodically through IRAC, a student can solve even the most difficult legal problem. But an IRAC solution, particularly a long one, is not good writing because it fails to pay attention to the needs of the reader. That requires an advocacy strategy. Some teachers try to get that across to students by teaching CIRAC (conclusion, issue, rule, analysis, conclusion) as the first step in converting an IRAC problem solution into advocacy. Some students attempt to use advocacy skills for problem solving. These students feel tricked when they learn the secret of getting good exam grades is to forget about good writing and use IRAC.

This problem can be averted if we identify problem solving and advocacy as separate skills. In class we should be particularly careful to distinguish between the two. When presenting an exercise, we should specify what the student is being asked to demonstrate. If it is advocacy, we should be careful to provide enough time for students to complete the problem solving and then transform that solution into something that is written in an interesting and convincing manner. Perhaps of paramount importance to students, we should decide which skill we want to test and specify that to the students so they can respond accordingly.