A plenary talk given at the APLEC 2018 conference, held at the School of Law, City University of Hong Kong

1. Learning to think like a lawyer
An empirical, interdisciplinary perspective
Christoph A. Hafner
Department of English, City University of Hong Kong
APLEC Conference, 6-8 December, 2018
City University of Hong Kong

2. Overview
• Rationale
• Thinking like a lawyer
• Case 1: Barrister’s opinions
• Case 2: Arbitration mooting
• Summary

3. Rationale

4. Benefits of the scholarship of teaching and
learning (SoTL)
• SoTL contributes to understanding “how learning is
made possible”, to support practitioners to teach “more
knowledgably”
• By enabling the assessment of “quality of teaching”, and
improving learners’ learning experiences, SoTL
maintains and raises the “status” of teaching work.
• SoTL would also study legal education politics and policy
concerning PLT, and pragmatically engage with concepts
of transparency, accountability, and evaluation of the
effectiveness of teaching and learning in PLT.
(Greaves, 2015, p. 23)

5. An applied linguistic approach
• Concerns itself with real world problems in which
language is a central issue
• Includes issues of professional communication
– What is effective professional communication?
– How is this skill learned?
• Draws on ‘authentic’ evidence of communication
practices
• Offers valuable perspectives for the teaching
and learning of professional lawyering skills
• Values collaboration with professionals

6. Approaches
• Analysis of particular texts/genres: target
situation analysis
• Analysis of the process of teaching and
learning

7. Thinking like a lawyer

8. Legal reasoning
e.g. Holland & Webb, 2016
Vandevelde, 1996
Law and society
Conley & O’Barr, 2005
Mertz, 2007
Merry, 1990

9. Rules v. Relationships (Conley & O’Barr, 1990)
Relational litigants
• tend to analyse their legal
problems in terms of status and
social relationships and assume
that the court is able to make
awards on the basis of “broad
notions of social need and
entitlement” (p. 58)
• describe the details of their social
lives to the judge when they
provide their accounts
• typically perceived by the court as
“imprecise, rambling, and straying
from the central issues” (p. 58)
Rule-oriented litigants
• tend to see the law as a system of
rules to promote individual rights
and responsibilities, irrespective of
notions of status and social
relationships
• “structure their accounts as a
deductive search for blame” (p.
59)

10. Qualitative inquiry and mixed
methods
• Qualitative methodology, e.g. case study, as
suited to uncovering multiple, complex
relationships found in the social world
• Questions about how people learn or how
they write are inherently complex and difficult
to break down
• Quantitative numerical data can play a role
e.g. determining how frequently particular
strategies are used by different kinds of
writers and how these writers compare

11. Case 1: Writing barrister’s
opinions on the PCLL at CityU
Studying a target text to analyze
needs and lacks

12. 1. What does the target barrister’s
opinion genre look like?
2. What difficulties do students
encounter when they write the
barrister’s opinion?
Who is the audience?
What is the purpose?
How is the genre
organized?
What typical patterns of
vocabulary and
grammar are used?
How does expert writing
compare to that of
novices?

13. Texts
Experts/novic
es
Discourse/genre
analysis
Comparative
analysis
Text-based
interview
Perceptions
Experts/novic
es
Survey
Interview
Focus group
Diary
Community
texts
E.g. writing
guides

14. Data sources (Hafner, 2008)
Texts
• 5 expert
barristers
• 19 novice PCLL
students
• Simulated fact
situations in land
and property law
Interviews
• Text-based
interviews
• Focus group
interviews
Community texts
• Inns of Court

15. Inns of Court on Opinion Writing
• ‘Abandon an academic attitude’ and ‘adopt a
‘practical approach’
1. ‘You are dealing with a real situation;
2. The facts are more fundamental than the law;
3. The law is a means to an end;
4. Answer the question’.
(Inns of Court School of Law, 2007, pp. 25-27)

16. Discussion of law compared
Number of
uninterrupted
paragraphs
discussing law
Students Experts
minimum 1 2
maximum 14 4
mean 5.63 3
Hafner, 2013

17. Number of appeals to authority
Unique
appeals
per
opinion
Unique
appeals
per 1000
words
Repeated
appeals
per
opinion
Repeated
appeals per
1000 words
Total
appeals per
1000 words
Students min 7 2.8 0 0 2.9
max 21 8.1 11 2.4 10.7
mean 10.8 4.4 6 4.4 6.8
Experts min 4 2.7 0 0 3.0
max 14 11.3 6 2.8 11.3
mean 8.8 6.3 2.2 1.3 7.6
Hafner,2013

18. Perceptions of novices
I think a more in depth analysis of law is
needed because the, the one who instruct
the barrister is also learned in law. I think
the, they may want to know more about a
certain area of law so that a solicitor could
advise their own client better. (S17, Focus
group 3)

19. Thinking/writing like a lawyer?
The academy
• Displays knowledge
• An ‘epistemic’ function
• Knowledge is the goal
Practice
• Uses knowledge
• Is ‘praxis-oriented’
• Knowledge is a tool
• Practical options are the
goal
(see Freedman & Adam, 2000; Freedman, Adam, & Smart, 1994)

20. Case 2: Preparing for a competitive
arbitration moot in academic legal studies
Studying interactions to
understand learning processes

21. How do law students in a mooting team
learn to write legal memoranda?

22. Texts
Novice memo
Draft --- Final
Novice
presentations
Discourse/genre
analysis
Comparative
analysis
Text-based
interview
Interaction
Experts/novic
es
Discourse
analysis
Content
analysis
Perceptions
Experts/novic
es
Survey
Interview
Focus group
Diary
Field notes
Recordings

23. Data sources
Texts
• Drafts of memos
• Feedback on
drafts
• Simulated Vis
moot fact
situation
Interactions
• Team meetings
• Field notes
• Audio and video
recordings
Interviews
• Individual
interviews with
students

24. Participants

25. Socializing interactions
• Textual mentoring
• Scaffolding
• Coaching
• Modeling
• Negotiating

26. Textual mentoring
This brings us to the second part of the meeting, where R will
address how to write a memorandum. He provides students
with a copy of a top ten memorandum written by CityU
students in a previous competition. He goes through this
memorandum section by section with students. The
memorandum has quite a lot of front matter, and R tells
students that they should adapt the file and keep the note of
reference, the index of abbreviations, and not to change the
index of authorities. He is very serious about the presentation
of the authorities, saying “you have to follow exactly the same
format” and “the consistency is the key”. He goes on to
explain the index of cases (from court) and the citation
format, as well as the index of arbitral awards and the index
of legal authorities.
Field notes, Team meeting 1
PRECEDENT CITY
UNIVERSITY OF HONG
KONG – CLAIMANT
MEMORANDUM.DOC

27. Scaffolding
R: Um [clears throat] another thing at the end you said that er “the agreement does not provide any deadline
for negotiation or mediation”. Why this deadline is important? Why do we need a deadline?
P: To show that it’s uh not mandatory. If there was a deadline, then it would really be mandatory.
R: OK. So is there any rule is there any law or is there any practice which says that you must have a
deadline?
P: Oh ah the arbitration for the dispute resolution [pause] options. Yeah, there is a case I put in that
paragraph.
R: The first?
P: Yeah. [Ah vwah?] something.
R: Yeah yeah.
[Female teammate: inaudible]
P: Yeah. ([Female teammate: inaudible]). Yeah. They they they say that it has to be clear that there have to be
certain deadlines and
R: Right.
P: You can only go to arbitration
R: Exactly.
Audio, Team meeting 2

28. Modeling
R: And there’s one thing “Since the Arbitral Tribunal may rule upon its own
jurisdiction”, why “may”?
P: Because the Tribunal has the authority to do so
R: Yea, it’s a competence. They have the authority to do that, so why “may”?
P: [nodding, admitting that it is a mistake]
R: Tribunal does rule upon, Tribunal has the competence. And the word if you
look at Article 16 of the MODEL law, it says competence competence rule,
right? The Tribunal has authority to rule upon its own jurisdiction. And these
things we put it as strong! Tribunal has the authority, Tribunal has the
competence, not “may”, there’s no doubt about it.
Video, Team meeting 2

29. Coaching #1
G: You must write your memoranda in such a way that an
intelligent moron is able to understand it. Uh what does that
mean? It means it has to be written in simple, but at the same
time rich and sophisticated language. But it must be written in
such a way that an intelligent moron is able to understand it.
Now, this is the 'intelligent moron test' that Professor S and I
apply all the time. What does it mean? It means that a person
who is not himself or herself a lawyer but is nevertheless
intelligent must be able to read your memorandum with benefit
and must be able to understand it.
Video, Team meeting 6

30. Coaching #2
G: Another thing that er you have to be aware of is that you should never ever
use colloquial language. You know I uh the people in your room who teach
legal English will probably agree with me and if they don’t agree, I stick to what
I say. You should never use colloquial language, that means no abbreviations, I
uh, ‘hasn’t’ it should be ‘has not’. Also for example in paragraph 5 you say in
[unclear] “arbitration is born out of consent”. I think that's very colloquial. A child
is ‘born’, you know? I uh, I know that is the language which has actually been
used by by Redfern and his group but because Redfern has used that
language and his group that doesn’t mean you have to copy the bad English
that Redfern writes. Arbitration is born out of the co- of consent between the
parties. You should rather say “arbitration is based on the consent of parties”.
Video, Team meeting 7

31. Student uptake
K is going over one of the issues in preparation
for the meeting and asks “Any questions? Any
foreseeable questions?” K has also been
through the memo and is making some
observations for other students: “Authority for
the second sentence”; “Is ‘creature of contract’
colloquial language?”
Field notes, Team meeting 7

32. Negotiating
G: Well er uh so so your argument is that many of the the items
that appear in the standard terms are actually replicated in the
uh framework agreement right?
P: To to some extent however whatever is in Annex 4 is just
standard. It’s one-sided. It’s not it’s not replicating what the
parties have agreed to.
G: Okay, okay, alright. I uh and er I understand that. Is there any
factual evidence that that is the case? That that it is unilateral
and namely that it has not been specifically agreed to by both
parties.
Audio, Team meeting 8

33. What are they learning?
• Legal values:
– Law as contested, uncertain, based in law and fact
• Writing values:
– Simplicity, clarity, precision
• Process:
– Based on precedent, careful, thorough, detail-oriented
• Legal argument:
– Use of authorities, support, creativity
• Memo form:
– Length, structure, formatting, style, linguistic choices
• Memo purpose:
– Writing for the moot judges, claimant/respondent memos

34. Summary

35. What are the communication
needs and lacks of students?
Texts
Community
texts
Perceptions
How do students learn a
communication skill?
Texts
Interactions
Perceptions

36. Identify context
and
collaborators
Identify question
Design methods
• Data sources?
• Analytical
techniques?
Clear ethics
Collect dataAnalyze data
Disseminate
findings
Implement
change
New question
et cetera

37. Thank you!