Scribes Journal of Legal Writing, Vol. 14, 2012
35 Pages Posted: 3 Dec 2011 Last revised: 7 Apr 2014
Date Written: December 28, 2012
Legal writing programs were singled out as bright spots in otherwise critical recent examinations of legal education at most U.S. law schools. Both Educating Lawyers, by the Carnegie Foundation for the Advancement of Teaching, and Best Practices for Legal Education, by the Clinical Legal Education Association, praised contemporary legal writing programs for actually preparing students for the profession by teaching them analytical and problem-solving skills in a practical context. However, Best Practices also identified as a significant weakness in many legal writing programs their failure to teach students how to draft common legal documents besides memos and briefs. That shortcoming is perhaps best illustrated by the fact that very few law schools teach students how to draft one of the more important documents practicing lawyers commonly prepare: proposed findings of fact and conclusions of law.
This article discusses the benefits of requiring students to prepare proposed findings and conclusions as the final assigment in a required first-year legal-writing course, immediately following their drafting of a summary judgment brief. Based on lessons learned teaching proposed findings and conclusions at the University of Montana School of Law over the last decade and a half, the article first explains the importance of proposed findings and conclusions, and how they often differ in significant ways from the actual findings and conclusions prepared by judges. Unlike the judge’s findings, the attorney’s proposed findings must persuade rather than merely decide, but must do so in the judge’s neutral voice. Additionally, unlike a judge’s work product, which receives considerable deference from its audience of appellate judges, an attorney’s proposed findings are viewed with professional skepticism by its audience, which also happens to be the person whose views the document purports to represent. As a result, an attorney drafting proposed findings and conclusions faces a more difficult task than the trial judge drafting the official findings and conclusions.
Yet despite that difficulty, almost no information exists explaining how drafting proposed findings and conclusions should differ from the judge's version. This article apparently provides the first detailed instruction on how to teach students to draft this important document, as well as the benefits of doing so.
In effect, drafting proposed findings and conclusions is an exercise in deconstruction for students, one in which they must take apart their persuasive summary judgment brief and strive for the same effect in a completely different and purportedly neutral format. Proposed findings of fact and conclusions of law should capture the essence of a well-written brief. Even though the document does not follow CRAC, lacks an argument section or even detailed analysis, and is written in the trial judge’s voice, it should still retain its persuasive essence through its logical progression to ultimate findings and conclusions.
In addition to instructing students how to prepare a common and important litigation document, another major benefit of teaching this assignment comes from making them engage in the act of deconstruction itself. Forcing students to take apart their summary judgment brief requires students to think about it as more than the sum of its parts, and to understand the interplay between the facts and the law in a way that an integrated brief often does not.
Keywords: proposed findings of fact and conclusions of law, findings and conclusions, CRAC, deconstruction, Educating Lawyers, Best Practices for Legal Education, Carnegie Foundation for the Advancement of Teaching, Eric Clapton, Jimi Hendrix, deconstructed food, molecular gastronomy, Ferran Adria, El Bulli
Suggested Citation: Suggested Citation
Howell, Larry, Deconstructing CRAC: Teaching Proposed Findings of Fact and Conclusions of Law in a Required Legal-Writing Program (December 28, 2012). Scribes Journal of Legal Writing, Vol. 14, 2012. Available at SSRN: https://ssrn.com/abstract=1966262