This is a presentation given at the Symposium of Second Language Writing held at Auckland University of Technology in November 2015.

1. Composing lawyers: Disciplinary socialization in the
writing of a collaborative legal memorandum
Christoph A. Hafner
Department of English, City University of Hong Kong
The 14th Symposium on Second Language Writing
November 20, 2015

2. Overview
• Theoretical framework
– Socialization and situated learning
• Background to the study
– Observation of preparation for a moot
• Mentoring interactions
• The way ahead

3. Socialization and genre learning

4. Socialization
• Socialization is ‘the process by which one
becomes a competent member of society’
(Ochs, 1998, p. 5)
• Language socialization is ‘the processes
by which novices or newcomers in a
community or culture gain communicative
competence, membership, and legitimacy
in the group’ (Duff, 2007, p. 310)

5. Situated learning
• From ‘legitimate peripheral participation’ to
full participation in a community of practice
(Lave & Wenger, 1991)
• Success depends on:
– Access to all parts of the activity
– Access to interaction with experts
– Access to the technologies and structures of
the community (Artemeva & Fox, 2014)

6. The need for research
“…insufficient research has examined, in an
ethnographic or otherwise in-depth,
longitudinal, and qualitative manner, the
nature and effects of scaffolding and
enculturation on students' acquisition and
production of target genres and of the tacit
cultural knowledge represented by such
genres” (Duff 2010:170)

7. The study: Background

8. The focal practice: Mooting
• Mock trials in the academy
– A simulated fact situation/dispute
• Students work in teams
• Role play advocates for parties
– Develop persuasive legal arguments
• Written arguments: Legal memorandum
• Spoken arguments: Oral hearing

9. The Vis moot competitions
• The ‘Willem C. Vis International
Commercial Arbitration Moot’
• The ‘Vis East’

10. Participants

11. Data sources
• Drafts of writing (legal memorandum)
• Feedback and comments on drafts
• Observations of team meetings
– Video and audio records
– Field notes
• Interviews
• WhatsApp group records

12. Summary of observations
Phase Date Details
1. Writing for claimant and
respondent
October to December
December to January
12 team meetings
2 ‘out-of-class’ meetings
2. Advocacy training February to March 15 team meetings including
13 simulated moots (10
recorded)
3. Competition April 1 to 4 4 competition moots

13. Phase 1: Claimant memo
• Collaborative writing process with 12
drafts, approx. one a week
– Meet, brainstorm and assign work
– Research, respond to issues, write (pairs)
– Consolidate draft (editor)
– Submit to coach
– Feedback (track changes, F2F meeting)

14. Analysis
Mentoring interactions

15. Textual mentoring
This brings us to the second part of the meeting, where
Rajesh 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 Rajesh
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

16. 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

17. 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

18. 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 Sharma
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

19. 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

20. Student uptake
Kandace 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

21. Negotiating #1
Geoffrey: 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?
Pranav: 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.
Geoffrey: 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

22. Negotiating #2
The iPad ‘rings’ at about 7:30 and G is trying to contact the
students. When he manages to get in touch, the students inform
him that they want to make a number of revisions and might
need another hour. G is worried about making changes at this
late stage but the students promise that they won’t make any
mistakes and convince him that the changes that R has
suggested will make the memorandum better. G says that he
has to meet some guests at 8:30 so there is no need to get back
in touch, congratulates the students and signs off.
Field notes, Team meeting 13

23. 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

24. Discussion
So what?

25. FULL
PERIPHERAL PARTICIPATION
Negotiating
Modeling
Coaching
Scaffolding
Textual mentoring
A socialization process
A process of situated learning
Learning values and learning writing skills
Texts
Experts
Resources

26. Some questions
• What does this study tell us about learning
to write?
• What can we as second language writing
experts take from this study?
– The value of simulations/projects and a
reason to write
– The value of situated feedback through
multiple modes

27. Where to from here?
• Content analysis of the written feedback
• What exactly are they learning?
• How are they learning?

28. Thank you!