Real Collaborative Context: Opinion Writing and the Appellate Process
Tom Cobb and Sarah Kaltsounis*
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I. Introduction
Collaboration in legal writing classrooms has become increasingly common.1 Faculty around the country are asking students to work in small groups to solve problems, review each other’s writing, and help ease each other into talking freely about the law.2 The ultimate pedagogical goals of such an approach are ambitious. Student-to-student discourse in law classes can help to build sophisticated analytical and rhetorical skills by providing students with a context in which to construct, debate, and assess legal arguments. Collaboration can also empower students by de-emphasizing the centrality of the teacher as an authority figure in the classroom and by inviting students to participate in legal discourse as critical and independent legal professionals. Finally, working in small groups can help students learn how to collaborate — an independent skill that law practice will require — and may even equip students to improve the many legal processes that involve collaboration. From these perspectives, it is no exaggeration to say that collaboration plays a key role in legal education and professional formation.3
Yet something about the form of collaboration we typically adopt has always produced the sense that collaborative learning has failed to achieve some of its most ambitious goals. Part of the problem is that collaboration is often not as engaging as it promises to be. For all it has to offer, the act of splitting into groups and working together in a room with other people who are working in small groups can seem contrived. Small-group work often seems to supplement rather than complement the learning process. When perceived as a contrivance, it can hinder full engagement with a complex legal problem — making the group’s legal analysis seem more like a classroom exercise than a method for learning sophisticated analytical and rhetorical techniques, or for engaging in jurisprudence. Such artificiality is intensified when small-group work is paired, as it ordinarily is in legal writing classes, with a task like memo writing, which is rarely approached in small groups in legal practice. These negative effects are redoubled, in our view, because the legal writing assignments in most textbooks unduly emphasize nasty, impatient, formalist bosses (for whom legal writing professors, at least in many students’ minds, are obvious stand-ins) — and thus neutralize the very sense of rhetorical agency that collaborative work seeks to nurture.4
Can we find more empowering forms of collaboration? Can we find ways to fulfill the promise of collaborative learning without accepting its more hokey incarnations? Can we update group work by making it at once more realistic and more engaging? Most importantly, can we use collaboration to help students learn something deeper about legal processes and decision making, something that will help them emerge from law school as critical and creative legal professionals with the knowledge and skills necessary to make extraordinary contributions to law and society?
These questions motivated us to begin experimenting with new and more ambitious forms of collaboration in our teaching. We aimed to infuse the classroom with what might be called “real collaborative context.” We looked for instances of collaboration that actually occur in the legal process and asked students to participate in those processes in order to gain a better understanding of the social aspects of legal practice and jurisprudence. Our hope is that students will experience collaboration not so much as a classroom performance whose main goal is to assist in learning something else that could also be taught in a noncollaborative way — for example, legal analysis, the structure of legal documents, or editing strategies. Rather, we hope to encourage students to experience the fusion of collaboration and the legal process — and to use that experience to see how social interaction shapes legal decision making and to gain a deeper understanding of the law.
Our initial experiment focused on appellate judicial decision making, an area whose study has been central both in jurisprudence and education, and which can therefore provide students with key insights into the legal process that are particularly relevant to their academic work in the first year of law school. However, a contextually rich approach to collaboration has broader applications as well. In our view, such an approach can be extended fruitfully to other educational projects such as public interest law office simulations, explorations of evidentiary inferences in factual investigation, or scenarios in which lawyers work together to evaluate cases in a law office setting. Each of these legal processes draws extensively on group decision making. By experiencing each form of such decision making, students will be able to learn fundamental lessons about legal reasoning and practice.
We hope that broader integration of real collaborative context in law school classes will eventually help introduce innovative approaches to group decision making back into law practice.5 Ultimately, students and teachers who experience (and experiment with) contextually rich collaboration in the classroom will be in an ideal position to help improve collaborative decision-making processes in legal practice.
II. Judicial Decision Making: Legal Collaboration in Practice
So many legal processes involve collaboration that it seemed likely we would find a number of different possibilities for integrating collaborative decision making and drafting into our course. One of our most intensive experiences with the relationship between collaboration and legal process occurred during our judicial clerkships at the Oregon Supreme Court and the United States Court of Appeals for the Ninth Circuit. On the one hand, the level of isolation that appellate judges experience was astounding. The hushed hallways of an appellate court can be reminiscent of a library or even a monastery. Law clerks as well as judges experience this isolation when working intensely on drafting an opinion or other absorbing analytical tasks. On the other hand, the judicial decision-making process was also enormously collaborative. Before working at a court, one tends to think of opinions as just another form of literary authorship, as the product of a single mind and hand. Law clerks are often, therefore, surprised to see how much group work is actually involved in judicial decision making and in drafting the opinion that ultimately explains the court’s justification for its decision.
A. Prehearing Memoranda and Circulating Opinions: Collaboration at the Oregon Supreme Court
At the Oregon Supreme Court, law clerks drafted preliminary analyses, after first debating the merits of a case among themselves and staff attorneys. They enshrined those analyses in prehearing memoranda, which they then discussed with their justices. The justices discussed the memoranda with staff attorneys, interns, and other justices to get a sense of where they and their colleagues stood on the question. And these steps all occurred before the oral argument and the opinion-drafting process, which are also intensely collaborative.
The justices conferred before, during, and after the oral arguments (where, of course, the parties’ attorneys had the opportunity to provide their input).6 After the oral arguments, the justices held their first formal conference about the case and took straw votes. Those votes helped the Chief Justice assign the case, but they did not bind the justice assigned to write the first draft of the opinion. This justice had free rein to write the opinion in a way that was consistent with the law and his or her legal values. Working closely with staff attorneys and law clerks, the justice produced a first draft to circulate to the whole court, including all the staff attorneys and law clerks. Each reader commented on the draft, both its substantive analysis and its style. (A favorite activity was to provide “nits” — grammatical or stylistic corrections to the opinion.) When possible, justices reviewing a colleague’s draft opinion tried to indicate whether they agreed with the analysis, the result, both, or neither. When that level of certainty was impossible, they simply indicated they would like to see another draft and spelled out specific concerns with the draft under consideration.
Either the law clerk or the justice assembled the dozen or so commentedupon drafts that came back. (Although the draft would be circulated to far more people at the court, not everyone had time to read and comment on each draft.) The justice added whatever new analysis seemed necessary or desirable. Then, the whole collaborative process began anew. On controversial opinions, it was not uncommon to see nine or ten drafts before the opinion reached the status of a “down draft,” meaning that barring any last-minute changes of mind, it had enough votes to be finally approved and, ultimately, published.
B. Bench Memos and Draft Opinions: Collaboration at the Ninth Circuit
Collaboration among judges and law clerks at the U.S. Court of Appeals for the Ninth Circuit occurs in much the same way as at the Oregon Supreme Court. The slight variations result from the Ninth Circuit’s status as an intermediate appellate court whose judges fan out across the western United States in threejudge panels each month to hear a week’s worth of oral arguments. “Riding circuit” now takes place by airplane or car instead of on horseback, but the tradition remains the same: judges are randomly assigned to sit with two colleagues each month,7 and they are also randomly assigned to hear cases at the courthouses in California, Oregon, Washington, Arizona, Alaska, and Hawaii.8
Once the presiding judge (the most senior active member of the panel) designates which of the three panel members will take primary responsibility for each case, each judge’s law clerks divide up their share of the labor as well and begin working in earnest once the briefing and records arrive.9 Despite the designation of a “writing judge” and a primary law clerk for each case, there are multiple points in the process where intense collaboration occurs. Among all the law clerks for the judges on a particular panel, one clerk typically takes the lead on working up a bench memorandum that evaluates the parties’ arguments and recommends how the panel should decide the case. Every case requires a different level of collaboration at this stage. Judges may provide their initial reactions to the law clerk either in conversation or in writing, and a law clerk may discuss aspects of a case with fellow law clerks or with the law clerks for the other judges on the panel.
The chambers of the three judges exchange bench memos approximately one to two weeks before oral arguments, so that every judge will receive a bench memo about each case either from his or her own law clerks or from colleagues’ law clerks.10 Particularly contentious cases might provoke a flurry of e-mail messages, phone calls, or shorter memoranda among the clerks in each chambers, as they each work to assemble materials for their judges to review before oral arguments. Many judges schedule meetings with their law clerks the week before oral arguments to review each case, which allows further collaboration as the judge and clerks debate the issues and decide which questions to focus on during oral argument.
Some judges may discuss pending cases among themselves before oral argument, but most of their discussion occurs in private conferences held immediately after the day’s arguments.11 Depending on the judges’ initial votes in each case, the presiding judge assigns writing responsibilities for the majority opinion and any dissent.12
In the weeks and months following arguments and the judges’ conference, collaboration in and among the chambers continues. The first level of shared work takes place within chambers, as a judge and law clerk work together to polish a draft opinion. Multiple revisions and back-and-forth editing sessions occur at this point; for example, Judge Alex Kozinski has noted that it is not unusual for him to exchange 20 to 30 initial drafts with a law clerk, and sometimes up to 50 to 60 by the time he finishes polishing and revising an opinion.13
The second level of collaboration takes place when a judge decides that a draft opinion is ready to share with the other judges on the panel. Once the opinion is circulated, further drafts (and the unavoidable “nit memos” to correct spelling, grammar, usage, punctuation, citation form, and other minor defects) are exchanged among the judges. Some judges require a final piece of collaboration, requiring law clerks to read opinions out loud to one another before sending them off for publication, as a final way to guard against errors.
Because cases in the Ninth Circuit are initially heard by three-judge panels, the court uses its limited en banc process to ensure that each opinion reflects the views of the majority of the members of the court.14 Once a three-judge panel issues an opinion, members of the court may call for a vote about whether to hear the case en banc.15 A judge who calls for a vote does so by circulating a private memorandum internally to fellow judges, explaining why the three-judge panel’s decision should not be allowed to stand. Each judge must then evaluate whether the “call” is meritorious and decide how to vote. Both the creation of the “call memo” and each judge’s decision about the case involve further inchambers briefing and collaboration among judges and law clerks. For cases that are eventually selected to be heard en banc, the process of creating bench memos, debating the issues, and exchanging draft opinions begins anew.
C. Reflections on the Role of Collaboration When Judges Decide Cases
The degree of collaboration at the Oregon Supreme Court and the Ninth Circuit relates closely to each court’s view of its own role as a lawmaking court and its sense of institutional legitimacy. For example, unlike some courts, the Oregon Supreme Court has generally placed a very high value on unanimity. Chief Justice Carson has said many times in the newspaper that his goal is to have the court speak with one voice.16 That goal often means that a great deal of negotiation has to occur in order to get all seven justices to sign a single opinion, especially if that opinion is controversial. Chief Justice Carson explains, “It takes time to reach an accord on what the law ought to look like. I think it is a better service to the people of Oregon and the lawyers and courts” when the justices reach an agreement.17 But unanimity has costs. For example, one Oregon Supreme Court Justice described the process of reaching a unanimous decision as “a bit like participating in a seven-legged sack race where all the participants, each with one leg in the same sack, must cross the finish line together.”18
By contrast, judges sitting in three-judge panels on the Ninth Circuit are often acutely aware that if a majority of their colleagues decide to rehear their decision en banc, or if the U.S. Supreme Court decides to grant certiorari, their decision could be reversed. This lack of finality, ever-present at an intermediate court of appeals, seems to give judges less incentive to issue unanimous opinions and leaves them perhaps a bit more free instead to issue concurrences or dissents that more accurately reflect each judge’s own views.19
Though somewhat screened from the details of these processes, law clerks at both courts generally knew enough about the analytical negotiation process to find it thoroughly fascinating, even from a distance. As the judges and justices worked within what must be called an area of “discretion” or ambiguity, they struggled to define the bounds of their own legal method and jurisprudence. The process raised important questions: How much were judges or justices willing to change their original judgments in order to reach a unanimous opinion? How much were they willing to stretch their understanding of the law? How much “stretch” did the interpretive norms of the law allow? How did judges view the role of a dissent? When, given all the other constraints, did it make sense to write one? At the Oregon Supreme Court, how highly did the justices value the Chief Justice’s goal of having the court speak with one voice — either as a matter of court policy or as matter of court politics? All of this thinking took place within the confines of the judges’ and justices’ own previous decisions — which potentially acted as a sort of personal precedent. Would judges’ reputations suffer if they took a position contrary to one taken in a previous case? Would the court’s legitimacy suffer if they didn’t? At the Ninth Circuit, judges conducted their analyses with the added constraint of having to honor binding, higher authority, which raised interesting questions about when a three-judge panel was required to follow, or could depart from, prior decisions by other Ninth Circuit panels or by the U.S. Supreme Court.
As the law clerks watched this fascinating legal process unfold, they began to realize how closely the drama of judicial decision making was tied to the social aspects of judging — the dialectic of individuality and personal integrity on the one hand, and consensus and institutional legitimacy on the other. Within this dynamic, the various players built consensus through written and spoken persuasion. And all of this persuasive activity was situated within a larger social framework — that of lawyers and other judges and justices who employed interpretive and discursive standards by which they judged the members of the court. Opinions that, when well packaged, seemed inevitable and univocal in fact resulted from a truly extraordinary collaborative process, filled with debate and compromise.20
III. Pouncing on Happenstance: Making the Most of Good Luck
Our experiences clerking motivated us to create a collaborative project in which students could see — or, better yet, experience for themselves — the debate, persuasion, and compromise that lurks below the surface of many judicial decisions. We believed that doing so would put students in a better position to critique judicial decisions and deepen their understanding of judicial decision making. Further, the experience would empower students, counteracting some of the negative forces students traditionally experience during their first year in law school. Legal writing assignments that place law students in the role of “lowly summer clerk” working for an impatient and demanding “senior partner” — though they might imitate some students’ first jobs — somehow don’t seem as inspiring as ones that let students play the role of a judge.21
Good teaching surely requires preparation, but it also benefits from being ready to take advantage of the occasional felicitous surprise.22 In this case, our good luck arose from participating in moot courts for two students who, under a colleague’s supervision, had briefed a statutory interpretation case before the Washington Supreme Court and were planning to argue that case several weeks later. When we participated in the moot court, we discovered that the case would present an ideal vehicle for students to learn about the collaborative process of judging.
A. Deductions from Inmate Trust Accounts: A Vehicle for Collaborative Work
The case, Anderson v. State, involved a challenge to the Washington Department of Corrections’ (DOC) policy for deducting money from inmate trust accounts.23 The case had the makings of a great classroom collaboration project for many reasons. It had equities on both sides: the inmates who challenged the DOC policy had been convicted of committing truly horrible crimes.24 Yet the DOC policy still seemed harsh — it resulted in taking as much as 20 percent of the money that inmates’ family members deposited in their loved ones’ trust accounts, for the purpose of paying back the costs of prosecution and public defense.25 Legally, the case also had good arguments on both sides: the DOC’s textual argument was weak, at least at first glance.26 Nonetheless, it was hard to imagine that the legislature intended the result that the inmates advocated — which would have treated the state’s “worst” criminals less harshly than those who had committed run-of-the mill crimes.27 This was just the sort of case a law clerk — and presumably a judge — at a court of last resort loves: a hard case that provides a methodological workout and fertile ground for debate.
The best thing about this case, though, was that at two different levels, it presented a remarkable story about the potential strength of the “underdog” in our legal system. The inmates noticed the deductions in their trust accounts and, using rather sophisticated textual arguments, challenged them in a series of “kites” (or official inmate requests) to prison officials and letters to the DOC. At one point, the inmates secured a favorable ruling from the DOC, and the DOC stopped making the questionable deductions. Apparently someone at the DOC agreed with the inmates’ reading of the statute. At a later point, however, the DOC received advice that it could continue making these deductions, and it decided to do so. A second round of complaints ensued, and the inmates filed pro se briefs in state superior court and then in the Washington Court of Appeals (where they lost). The Court of Appeals did not even write an opinion. When the inmates themselves petitioned for review in the Washington Supreme Court,28 they did a good enough job on the briefing that the Washington Supreme Court Commissioner’s office recognized the potential merit of their argument and its importance for other inmates in the state. The court granted review based on the pro se materials, something it rarely does.
This is where the second level of “underdogs” comes into play. Although the inmates’ briefing was quite good, especially for pro se work, the Washington Supreme Court apparently believed that it would benefit from a more professional presentation of the arguments. The court thus contacted our colleague, Prof. Helen Anderson, an appellate specialist who had worked for many years as an appellate public defender and now taught legal analysis and writing and criminal law.29 The court asked whether she would be willing to participate in briefing, perhaps using the case as a vehicle for teaching students about appellate law.
Prof. Anderson recruited two third-year students — Ben Stafford and Loren Joner — to help brief and to argue the case.30 The case was scheduled for argument just before winter break, and as we sat in the moot court Prof. Anderson arranged for the day before the argument, a light bulb went on: this would be the perfect problem for the winter quarter.31 Having students brief and argue the case made it particularly intriguing; we thought that involving third-year students in our class might show our first-year students a very positive picture of what they would be capable of accomplishing in a couple of years if they worked hard, and might help alleviate some of the disenchantment — let’s call it the 1L Winter Blues — that affects some students during the first year.32
* © Tom Cobb and Sarah Kaltsounis 2008. Tom Cobb is a Senior Lecturer at the University of Washington School of Law. He clerked for the Hon. Susan M. Leeson of the Oregon Supreme Court from 2001 to 2003. Sarah Kaltsounis is a Lecturer at the University of Washington School of Law. She clerked for the Hon. Richard C. Tallman of the U.S. Court of Appeals for the Ninth Circuit from 2003 to 2004. We thank Kate O’Neill, Suzanne Rowe, Helen Anderson, Joel Ngugi, Mike Peters, and Deborah Maranville for reviewing earlier drafts of this article and making thoughtful comments, and we thank Mary Whisner for her superb research support.
1 See Steven I. Friedland, How We Teach: A Survey of Teaching Techniques in American Law Schools, 20 Seattle U. L. Rev. 1, 29-30 (1996) (reporting that forty-nine percent of first-year skills professors employed small groups or dyads in their classes); but see Clifford S. Zimmerman, “Thinking Beyond My Own Interpretation:” Reflections on Collaborative and Cooperative Learning Theory in the Law School Curriculum, 31 Ariz. St. L.J. 957, 965-66 & n. 29 (1999) (lamenting paucity of well-developed applications of collaborative learning in legal writing courses and proposing increased use of collaborative teaching techniques in law schools).
2 See Krista Riddick Rogers, Promoting a Paradigm of Collaboration in an Adversarial Legal System: An Integrated Problem Solving Perspective for Shifting Prevailing Attitudes from Competition to Cooperation Within the Legal Profession, 6 Barry L. Rev. 137, 148-50 (2006) (describing various reforms designed to “humanize” legal education, including emphasis on cooperative learning); Alison Greig, Student- Led Classes and Group Work: A Methodology for Developing Generic Skills, 11 Leg. Educ. Rev. 81, 93 (2000) (noting students’ increased levels of confidence to present material and interact with groups after doing collaborative projects); Zimmerman, supra n. 1, at 999-1004 (discussing general pedagogical advantages of collaborative learning).
3 Given the importance of collaboration to professional formation, it is striking that the Carnegie Foundation’s recent report gives the subject little explicit attention. See William M. Sullivan et al., Educating Lawyers: Preparation for the Profession of Law 35 (Jossey-Bass 2007) [hereinafter Carnegie Report because the study was undertaken by The Carnegie Found. for the Advancement of Teaching].
4 See Jessica E. Price, Imagining the Law-Trained Reader: The Faulty Description of the Audience in Legal Writing Textbooks, 16 Widener L.J. 983 (2007).
5 See Gene Koo, New Skills, New Learning: Legal Education and the Promise of Technology 4, 16 (Berkman Ctr. for Internet & Socy. Research Paper No. 2007-4) (available at http:// papers.ssrn.com/sol3/papers.cfm?abstract_id=976646) (noting that “traditional law school classes rarely promote teamwork” and urging law schools to develop “best practices for attorneys to follow in using technology to organize their teams”).
6 See Or. R. App. P. 6.15 (describing oral argument procedures).
7 See U.S. Court of Appeals for the Ninth Circuit, Introduction: Court Structure and Procedures in Federal Rules of Appellate Procedure; Ninth Circuit Rules; Circuit Advisory Committee Notes § E(5), xxviii, http://www.ca9.uscourts.gov/ca9/Documents.nsf/c9254affb51940d 288257316006b454d/$FILE/ FRAP_0707.pdf (July 1, 2007) [hereinafter Ninth Circuit Rules Pamphlet] (describing how the Ninth Circuit Clerk selects the judges to serve on each panel).
8 Ninth Circuit Rules Pamphlet, supra n. 7, at § E(4), xxvii-xxviii (describing how cases are assigned to different calendars, and how the monthly oral argument sessions are divided among the circuit’s courthouses in different states).
9 Ninth Circuit Rules Pamphlet, supra n. 7, at § E(6), xxix (explaining that briefs arrive in a judges’ chambers approximately six weeks before oral arguments).
10 Some judges choose not to participate in this “bench memo pool,” instead asking their law clerks to write up bench memos for their personal use for all the cases to be heard during a week of oral arguments. This practice has the effect of reducing the amount of interaction and communication between the law clerks from the various chambers because they are not reading and evaluating each other’s bench memoranda.
11 Ninth Circuit Rules Pamphlet, supra n. 7, at § E(8), xxix (describing the conference and writing assignments that take place after oral arguments).
12 Id.
13 Alex Kozinski, Confessions of a Bad Apple, 100 Yale L.J. 1707, 1711 n. 9 (1991).
14 Ninth Cir. R. 35-3, in Ninth Circuit Rules Pamphlet, supra n. 7, at 147 (describing the Ninth Circuit’s limited en banc process); see also generally Fed. R. App. P. 35, in Ninth Circuit Rules Pamphlet, supra n. 7, at 145-46 (setting forth the basic requirements for hearing a case en banc, either initially or to rehear a three-judge panel’s decision).
15 Circuit Advisory Note to Ninth Cir. Rs. 35-1 to 35-3, in Ninth Circuit Rules Pamphlet, supra n. 7, at 148 (describing the court’s internal en banc procedures).
16 See e.g. Peter Wong, Chief Justice Is Retiring, Statesman J. 1C (Dec. 30, 2006) (“Carson took pride in the fact that 94 percent of the opinions issued while he was chief justice were unanimous.”); Wallace P. Carson, Jr., & Susan P. Graber, A Tribute to the Work of Edwin J. Peterson, 73 Or. L. Rev. 731, 736 (1994) (praising Chief Justice Peterson for striving to reach consensus and reducing the number of separate opinions written by individual judges).
17 Peter Farrell, Oregon Supreme Court Decides Fewer Cases, Struggles to Do More; Reviews of Death Sentences, Bar Group Disciplines and Ballot Title Challenges All Bog Down the Justices’ Docket, The Oregonian C04 (Mar. 8, 2001).
18 State v. Dameron, 853 P.2d 1285, 1297 n. 8 (Or. 1993). Though it may take a long time to achieve unanimity, it may take even longer to issue non-unanimous decisions. See Roger A. Hanson, Appellate Court Performance Standards and Measures (Natl. Ctr. for St. Courts & App. Ct. Performance Standards Commn. 1999) (available at http://www.ncsconline.org/WC/Publications/ Res_AppPer_PerformanceStandardsPub.pdf).
19 For an intriguing discussion of “dissensus” in the federal appellate courts, see Virginia A. Hettinger et al., Judging on a Collegial Court: Influences on Federal Appellate Decision Making (U. Va. Press 2006).
20 For a general discussion of some of these dynamics, see Ruth Bader Ginsburg, Remarks on Writing Separately, 65 Wash. L. Rev. 133, 141-43 (1990) (discussing effect of writing separately on judges’ reputations and on courts’ legitimacy).
21 See Price, supra n. 4, at 990-1004, 1011 (critiquing the typical scenario of legal writing problems on the ground that they risk disempowering some students because of the extent to which they represent law-trained audiences as scary, grammar-obsessed formalists).
22 In fact, luck isn’t completely based on chance. We have found that more good luck happens when we are actively engaged with other events happening at our law school, particularly with clinical or real practice experiences.
23 Anderson v. State, 154 P.3d 220, 221 (Wash. 2007); see also Wash. Rev. Code § 72.09.480 (2007); Wash. Dep’t of Corr. Policy 200.380, Legal Financial Obligations and Costs of Supervision, http://www.doc.wa.gov/policies/showFile.aspx?name=200380 (Mar. 30, 2007).
24 See State v. Anderson, 129 Wash. App. 1012 (Div. 1, 2005) (unpublished) (conviction of one plaintiff for aggravated first-degree murder and conspiracy to commit first-degree kidnapping); State v. Nordlund, 121 Wash. App. 1076 (Div. 2, 2004) (unpublished) (conviction of other plaintiff for indecent liberties with forcible compulsion, unlawful imprisonment, and second-degree attempted rape).
25 Anderson, 154 P.3d at 224-25.
26 Id. at 228-30 (C. Johnson, J., dissenting).
27 Id. at 227-28.
28 Appellant’s Opening Br., 2005 WL 4656039 (Dec. 15, 2005).
29 Helen Anderson is an Assistant Professor of Law at the University of Washington School of Law.
30 Appellants’ Supp. Br., 2006 WL 3910772 (Oct. 26, 2006).
31 Because we used publicly available documents from the case file, we did not need to seek the court’s permission to use this case as a teaching tool.
32 We viewed the bench memorandum and judicial opinion writing assignments that resulted from this project as simply different forms of the standard research memorandum common to all 1L legal writing curricula. Both writing assignments required students to identify and articulate the legal issue, to present the facts in an objective manner, and to explain how the governing legal authorities applied to the facts of the case. Evaluating the actual briefs the parties submitted to the Washington Supreme Court gave students a preview of future persuasive writing assignments and courses.