Using Contrastive Rhetoric in Legal Writing Pedagogy

By Rafael Dean Brown

Case Western Reserve University School of Law

LLM in U.S. and Global Legal Studies Program

This paper was presented at the following conferences:

First Global Legal Skills Conference, John Marshall Law School, Chicago,
Illinois (May 6-7, 2005)
Innovative Methods for Teaching Research, Writing, and Effective Communication Skills
to ESL and EFL Students

What constitutes a good persuasive legal argument in one culture is not

necessarily the same in another culture.1 To formulate good persuasive legal arguments,

the writer must understand the rhetoric of a given culture.2 Like most of my students, my

Chinese student, Xiaochen Hu, stated that it was at first surprising and made a drastic

difference in her understanding of U.S. law to learn that lawyers in the U.S. take a more

active role as writers and in shaping the law. She explained that since legal arguments in

China are based primarily and almost exclusively on statutes, Chinese lawyers generally

do not write lengthy briefs or memorandums to support their arguments the way lawyers

in the U.S. do, but typically compose form pleadings. The role of Chinese lawyers as

writers and how they compose an argument is drastically different than for U.S. lawyers

due to the differences in the legal traditions and cultures. Yet, it is not only rhetoric or the

1
Ulla Connor, NEW DIRECTIONS IN CONTRASTIVE RHETORIC [hereinafter Connors, NEW DIRECTIONS].
2
See, Id. for a further discussion on the issue relating to the definition of culture. Connor, at one point,
defined culture as “as set of rules and patterns shared by a given community.” See also, Ulla Connor,
CONTRASTIVE RHETORIC: CROSS-CULTURAL ASPECTS OF SECOND-LANGUAGE WRITING 101 (Cambridge
University Press 1996)

1
style of argumentation, but also logic or content that is affected by culture.3 Chinese

lawyers, according to Xiaochen, will also not be explicit with their arguments, but will

begin by stating the statutory rule, followed by the facts of a case, and only in the end

will explain why the statute should be interpreted in their favor.

The inquiry into the cross-cultural and cross-linguistic challenges for English as a

Second Language (ESL) students when composing in various academic settings has long

been undertaken by contrastive rhetoricians. Contrastive rhetoric is a growing and

evolving field of study on the differences and similarities in cross cultural and cross

linguistic writing, focusing on the relationship of culture, language, logic, and rhetoric.

Contrastive rhetoric argues that language and writing are cultural phenomena with

culturally defined conventions and specific rhetorical expectations. Persuasive

compositions in native varieties of English, for example, differ significantly from each

other, and other languages have “characteristic rhetorical organizations of expository and

argumentative” writing that are not even employed in English.4

I am here today to share my experiences with using contrastive rhetoric in legal

writing pedagogy. I will discuss how contrastive rhetoric has led me to reconsider some

aspects of legal writing pedagogy, sharing my experiences on how I use contrastive

rhetoric in teaching legal writing in the ESL classroom. I do this with the hope that this

presentation will ignite interest and discussion on the role of contrastive rhetoric in legal

writing pedagogy, most especially in the ESL classroom.

I. Background on Contrastive Rhetoric

3
Connor, NEW DIRECTIONS, supra n. 1 (referring to Hottel-Burkhart’s study of contrastive rhetoric).
4
Yamuna Kachru, Cultural meaning and contrastive rhetoric in English education, 16 World Englishes
337, 338 (1997).

2
 Contrastive rhetoric began in 1966 with Robert Kaplan’s seminal article, Cultural

Thought Patterns in Intercultural Education.5 Kaplan compared the essays of 600

undergraduate international students, and observed their patterns of paragraph

organization.6 He found five distinct rhetorical patterns of paragraph development, which

he crudely represented in diagrammatic form now popularly known as the “doodle

article.” In doing so, he oversimplified the structural patterns of five cultural traditions,

labeled Oriental (spiral), English (straight line downward), Arabic (zigzag), Russian, and

Romance (line heading downward and veering off to different angles).7 Kaplan then

concluded that different languages, as a consequence of culture, have different rhetorical

structural norms.

While Kaplan’s exaggerated doodles have been widely criticized for being too

simplistic, prescriptive, colonialist and arrogant,8 Kaplan has adjusted his original

position9 and the field of contrastive rhetoric has nevertheless evolved into a complex

inquiry into the relationships of culture, language, logic, and rhetoric.

Despite its early shortcoming, contrastive rhetoric has nevertheless established

itself as an important field of study. New contrastive rhetoric has expanded beyond the

paragraph organizational structures and is now given a broader definition. Most

importantly, it emphasizes that one style of writing is not necessarily better than others,

as the doodle article may have suggested. Instead, new contrastive rhetoric focuses on

making students aware of the different writing conventions, different roles of writers, and

5
Robert B. Kaplan, Cultural Thought Patterns in Inter-Cultural Education, 13 Language Learning 1-20
(1966).
6
Id.
7
Id.
8
See, Ilona Leki, UNDERSTANDING ESL WRITERS (Boynton/Cook 1992).
9
Robert B. Kaplan, Cultural Thought Patterns Revisited in Ulla Connor and Robert B. Kaplan, WRITING
ACROSS LANGUAGES: ANALYSIS OF L2 TEXT 9 (Addison-Wesley 1987).

3
different audience expectations across language, culture, and even specific discourse

communities. Contrastive rhetoric today has taken on a multidisciplinary approach,

encompassing the fields of applied linguistics, linguistic relativity, rhetoric, text

linguistics, discourse type, literacy, and translation.

Contrastive rhetoric has expanded to a many number of English for Specific

Purpose discourse communities such as business and technical writing.10 Unfortunately,

contrastive rhetoric has received little attention in the legal writing community. Despite

concerns and observations by the legal writing community about the increasingly

globalized legal writing classroom,11 there has only been one serious treatment of

contrastive rhetoric and studies on cross cultural and cross linguistic impact, 12 and a

review of legal writing textbooks used in law school also reveals a limited treatment of

contrastive rhetoric.13 The prior limited treatment of contrastive rhetoric also fails to

consider new multidisciplinary contrastive rhetoric as espoused by Ulla Connor.

Legal writing instructors of both L1 and L2 students need to pay more attention to

the observations and lessons that contrastive rhetoric offers. While a number of foreign

10
Ulla Connor, CONTRASTIVE RHETORIC: CROSS-CULTURAL ASPECTS OF SECOND-LANGUAGE WRITING 101
(Cambridge University Press 1996) [hereinafter Connors, CONTRASTIVE RHETORIC].
11
See Susan Adams, The Global Writing Classroom in The Second Draft, vol. 18, no. 1, 16 (LWI
December 2003); Linda Anderson, Finding Common Knowledge Among Diverse Students in The Second
Draft, vol. 18, no. 1, 14 (LWI December 2003); Bill Chin, Meeting the Needs if Asian Law Students in The
Second Draft, vol. 18, no. 1, 14 (LWI December 2003).
12
Jill J. Ramsfield, Is “Logic” Culturally Based? A Contrastive, International Approach to the U.S. Law
Classroom, 47 J. Leg. Educ. 2 (June 1997) (Ramsfield was the first to discuss the impact of contrastive
rhetoric on legal writing pedagogy.) A search in Lexis for the term “contrastive rhetoric” only results in one
footnote mention. Christopher Rideout and Jill J. Ramsfield, Legal Writing: A Revised View, 69 Wash. L.
Rev. 35, 88, fn 174 (1994).
13
See, Laurel Oates, Anne Enquist, and Kelly Kunsch, THE LEGAL WRITING HANDBOOK 922 (3rd ed.,
Aspen Law & Bus. 2002) (giving the best, though limited, treatment of contrastive rhetoric in a legal
writing textbook).

4
trained students and lawyers studying law in the U.S. has drastically grown14 in the past

ten years, there has yet to be any serious thought on the impact of a cross linguistic, cross

cultural, and cross legal classroom. While most foreign law students attain LL.M. degrees,

there are also a substantial and growing number of previously foreign trained J.D.

students.

II. Discourse v. Sentence Level

It is important to note that contrastive rhetoric places emphasis on the

composition or discourse level, and not at the sentence or grammar level. As such, Ulla

Connor defines contrastive rhetoric as “an area of research in second language acquisition

that identifies problems in composition encountered by second language writers, and, by

referring to the rhetorical strategies of the first language, attempts to explain them.”15

Prior to Kaplan’s proposal, the majority of scholars focused on the sentence and

audiolingual level when teaching ESL students.16 Kaplan, however, challenged this long

held belief, and proposed that ESL teachers should additionally and perhaps primarily

focus on the discourse level. Just because a person may have a good grasp of grammar

rules in the second language (English) does not mean that the same person has a good

grasp on composition in the same second language.17 Knowledge of grammar does not in

and of itself lead to the ability to compose.18 Yet, according to Barbara McDaniel, “the

14
Rideout, supra n. 3 (stating that “[s]ome readings [for legal writing professors] might also cover
methods for teaching students for whom English is a second language, more of whom are entering law
schools.”)
15
Connors, CONTRASTIVE RHETORIC, supra n. 10.
16
Id.; see also Paul Kei Matsuda, Student Thesis, Contrastive Rhetorics: Toward a Pedagogical Theory Of
Second Language Writing (Miami University 1995).
17
Kaplan, supra n. 5.
18
Id. at 15.

5
usual training in English for nonnative speakers aims only toward the goal of

grammatical competence.”19 McDaniel further elaborates by stating the following:

ESL/EFL instruction focuses on sentence grammar, not on the ability to

compose and evaluate meaningful discourse or to understand the unique
features of English discourse. Hence, a person who completes ESL/EFL
training, enters the world of technical communication, and attempts to
write in English must find a way to close the gap between writing
grammatical sentences and writing professional prose. The latter is hard
enough for native English speakers, but harder still for these writers who
are not natives of the culture whose language they are using.20

Contrastive rhetoric supports the position that foreign law students will gain more

when the primary pedagogical focus is at the legal composition and discourse level and

not at the grammar and vocabulary level. Unfortunately, just as McDaniel stated, many, if

not most, training of foreign students in legal writing either (1) aim only and separately at

grammatical competence coupled with training in legal vocabulary with the expectation

that foreign students will eventually learn legal composition or discourse under the same

model as native speakers, or (2) aim at both grammatical and discourse competency

without explicitly identifying the first language interference at the grammar and discourse

level and without addressing the “effects of different cultural ‘logics’ and ‘realities’ of

discourse.”21

At my law school for example, five years ago an ESL instructor without a legal

writing background taught grammar and vocabulary in one class separate from another

instructor with a legal writing background who taught legal composition in another class.

Many students taught under that first model complained that the grammar and vocabulary

class was a waste of time because it did not help them with legal writing. What happened

19
Barbara McDaniel, The Role of Contrastive Rhetoric in Teaching Professional Communication in
English as a Second or Foreign Language, IEEE Trans. on Prof. Comm. Vol. 37, No. 1, 30 (1994).
20
Id.
21
Id.

6
at my school was that students found it difficult to close the gap between writing

grammatical sentences and composing legal texts.

Legal writing instructors of ESL students must seriously consider that, according

to contrastive rhetoric and ESL experts, composing competence is more important in ESL

writing than language or grammar competence.22 What this means is that ESL law

students will gain more from legal writing and U.S. law schools in general, if we

explicitly help them bridge the gap between writing grammatical sentences and

composing legal texts by making the teaching of composition the first aim of legal

writing pedagogy. My Israeli student, Sofia Teren, stated that “with our level of English,

you used the right method of teaching English because grammar came along with writing

skills.”

The focus on composition rings even more true in ESL legal writing pedagogy,

where LL.M. programs require minimum TOEFL scores for admission.23 It would be fair

to expect that students admitted in LL.M. programs already have prior ESL training in

grammar and have a specific level of language competency. In fact, many of my students

entering our program are well versed in grammar rules, albeit with typical ESL mistakes,

as in the use of articles. While learning how to write is a very long process, longer than

the one year a foreign student spends in a typical LL.M. program, a lot of progress can be

made in this one year by focusing legal writing pedagogy primarily on the composition

and not at the grammar level. While grammar mistakes will inevitably remain and must

continually be addressed, just as for native speakers, the foreign students’ ability to

22
Connors, CONTRASTIVE RHETORIC, supra n. 10.
23
Most programs require a minimum score of 600 (250 computer test) on the TOEFL.

7
participate in legal discourse including their reading skills will be greatly enhanced if

rhetorical strategies in U.S. legal writing are explicitly taught.

I am not advocating that grammar does not have a role in ESL legal writing

pedagogy. Instead, it should be taught through the use of legal texts and in the context of

U.S. legal discourse. Rather than simply reviewing grammar rules outside the context of

legal discourse, the ESL legal writing instructor should, through the use of legal text,

focus on teaching students how to negotiate with legal text, how to use specific grammar

rules to achieve conciseness, and how to use grammar rules to compose persuasive text.

For example, I spend one to two weeks with my students on how to write the

statement of facts, not because the facts of the case I give them are complicated (it is a

slip and fall case), but because I want the students to think precisely about each sentence

and whether it has been written in a light most favorable to the client. I ask them to

rewrite the same sentence using different sentence structures, and by considering which

sentence is most effective. In doing so, I highlight specific grammar rules and how they

affect the sentence. This is done both in the weekly workshops and in the textual

comments on the many drafts they turn in. This exercise in the end highlights the use of

articles, punctuation, subject and verb relationship, pronoun, sentence length, adverbial

phrases, word choice, dependent and independent clauses, capitalization, and whatever

other problem area a student may have. In the end, the students would not only have

reviewed and understood the rules of grammar, but they would have also learned how to

make choices. They learn how to make these choices, not only at the sentence level, but

also in the paragraph and discourse level.

III. Teaching legal discourse

8
 What I have taken from contrastive rhetoric is that the aim of ESL legal writing

pedagogy is to first address general discourse structures, specifically U.S. legal discourse.

This is especially true in legal writing as a technical subculture, where there exist specific

expectations on the structures or organizations of legal texts. For example, the CRAC24

format, similar to and perhaps modeled after Toulmin’s model of argumentation,25 is

certainly ingrained in legal discourse.

I usually teach the CRAC format hand in hand with how to brief a case. I point

out similarities between the two. In the end, students learn hand in hand not only how to

write in the CRAC format, but also how to read cases written under the CRAC model.

Teaching legal writing, thus, takes on a relationship with how student engage with legal

texts in other courses.

While traditional JD student, too, must learn these discourse structures, how they

are to be taught to foreign students differ. First, most foreign students in LL.M. programs,

unlike their JD counterparts, have had prior legal writing training in their first language

and in the context of their first legal culture. It is important to keep in mind that while

traditional JD students might already have existing general notions about the U.S. legal

system and its culture, LL.M. students will not only lack the same general notions about

the U.S. legal system and its culture, but will certainly have another different and often

contradictory set of ideas about the law and how to express legal arguments. It is, thus,

not enough to use the same model of legal writing pedagogy for both JD and LL.M.

24
Conclusory statement, Rule, Analysis, Conclusion
25
Toulmin's original model of argumentation has six components: claim, data, warrant, backing for the
warrant, modal qualifier, and possible rebuttal. See, Jay G. VerLinden, Verifiers in Everyday Argument: An
Expansion of the Toulmin Model, [Link] (last modified
November 21, 1998).

9
students. With LL.M. students, there must be an explicit identification and unraveling of

cross language, cross cultural, and cross legal interferences.

When teaching the CRAC structure to foreign students, it is important to first

identify how the students were taught to compose text and formulate arguments in their

first language and in the context of the first legal culture. The theory of applied linguistics

supports the principles in contrastive rhetoric that first language patterns transfer to the

second language. Linguistic relativity supports the principle that patterns of language and

writing are culture specific. The ESL legal writing instructor, through individual

workshops, must explicitly discover these differences in patterns from their students, not

to say that they are wrong or inferior, but that they might not necessarily be effective in

U.S. legal discourse. Without doing this, patterns from the first language and first legal

culture will transfer26 and possibly interfere with the students’ understanding of the

CRAC format.

The patterns of memorandum legal writing in other legal cultures, even in Canada,

will be different from the U.S. CRAC model. In Canada, for example, students are taught

to organize and label the analysis section of a legal memorandum in the following order:

the law, synthesis, application of law to our situation.27 While the Canadian model shares

similarities with the CRAC model, there are some differences. The Canadian model does

not use the conclusory statement at the beginning of the analysis section. For each issue

in a legal memorandum, the Canadian model discusses, separately from each other under

26
Muramatsu Mieko, An Interview with Ulla Connor, The Language Teacher, [Link]
[Link]/tlt/files/97/apr/[Link] (last modified April 16, 1997).
27
See generally, Maureen F. Fitzgerald, LEGAL PROBLEM SOLVING 171 (Butterworths 1996); Timothy
Perrin, BETTER WRITING FOR LAWYERS (The Law Society of Upper Canada 1990).

10
a specific heading, the law first, synthesis second, and application of law third;28 whereas

the U.S. CRAC model pushes for an argument driven organic and blended discussion of

the rule and the application of the rule to the facts, through the use of topic sentences,

signposts, and transition devices.29 The synthesis section in the Canadian model (the

general rule) is discussed separately and after a review of statutes and cases,30 while it is

typically discussed at the beginning of the discussion section under the CRAC format.

While these differences might seem minor and often unnoticeable to foreign

students, they are important enough to interfere with a student’s legal writing and how

that writing is perceived. Most U.S. law professors will deem such writing

unsophisticated, when it is only a rhetorical norm widely used in the former legal writing

culture. A student, most certainly, will not understand how he can make the factual

analogies more explicit. A student from Lithuania even commented that the emphasis on

a set structure in U.S. legal writing is simply lacking in Lithuanian legal writing, where

students are not even taught specific rhetorical structures.

I often find interference not only from the first language but from the first legal

culture. Interference exists based on different concepts on the role of lawyers and judges,

different court and statutory structures and hierarchies to determine what is persuasive or

mandatory authority, and different cultural views on litigation. Most Thai and Chinese

students, when discussing the merits of the slip and fall memorandum they are assigned

to write in the beginning of the year, state that no one in their country would even think

of suing for injuries sustained in a parking lot. Additionally, many of my Thai students

will at first resist making explicit legal claims when writing legal memorandums. They

28
See, Maureen F. Fitzgerald, LEGAL PROBLEM SOLVING 171 (Butterworths 1996).
29
See generally, Oates, supra n. 13.
30
Fitzgerald, supra n. 28.

11
explained that in Thailand they stated the statute first then discussed how the facts meet

the statutory requirements. They found it awkward to state the conclusion up front

without discussing the law first. Many Thai students, having been trained to analyze the

law in the civil law tradition and culture, also find it difficult to deal with adversely

authoritative cases. This is not only because of their inexperience in working with case

analysis, but also because of a different view on the role of judges and to what extent

lawyers can challenge the judges’ rationale. So, I work with them individually in the

workshops to identify how they were taught to make and write arguments under the Thai

legal system and writing culture. It is only after these interferences are explicitly

addressed that the CRAC format truly sinks in.

IV. Writer’s Role

The ESL legal writing instructor must also explicitly address the difference in the

writer’s role from the first language and legal culture to the second language and legal

culture. Contrastive rhetoricians often cite John Hinds for the proposition that the role of

the reader and writer vary among cultures.31 For example, Japanese writing according to

Hinds is generally reader responsible, while writings in English are writer responsible.32

This difference has a great impact when teaching foreign students legal writing, which is

not only writer responsible, but ultra writer responsible. Judges in the U.S. will expect a

writer to explicitly state an argument in the beginning. This will not necessarily be the

same in other cultures as stated by my Thai and Chinese students.

V. Audience

31
John Hinds, Reader Versus Writer Responsibility: A New Topology in WRITING ACROSS LANGUAGES:
ANALYSIS OF L2 TEXT (Ulla Connor & Robert B. Kaplan eds., 1987).
32
Id.

12
 Foreign students may also have a different understanding of audience expectation.

Rhetoric elaborates on the principle that writing as communication and persuasion is

affected by audience.33 This has influenced contrastive rhetoric, which examines the

differences in audience expectations between the first and second language. The ESL

legal writing instructor must provide an explicit explanation of the different audience

expectations between the first language and legal culture and the second language and

legal culture. What judges and lawyers in the U.S. expect from legal writing differs

significantly from what judges and lawyers in other legal cultures expect. While readers

of legal texts in Thailand and China are more tolerant of legal writing that saves the

conclusory statement for the end, readers of legal texts in the U.S. are not. Again, these

differences must be identified and explicitly addressed. I do this, not by saying that one

legal culture is necessarily better than the other, but that they are simply different. As

such, if one expects to convince his audience to accept an argument, one must be mindful

of what the audience expects.

I devote one class at the beginning of the year on audience expectation and how

such expectations may affect compositional choices. I follow this with individual

workshop discussion on the differences in audience expectations. While it might be

helpful to ask a group of students from the same country to attend the workshop together,

assuming that they have the same understanding of audience expectations in their legal

and writing culture, you will find that even students from the same country may have

different understandings of what an audience expects.

VI. Coherence

33
Connors, CONTRASTIVE RHETORIC, supra n. 10.

13
 The use of specific cohesive devises in legal writing also poses a problem for

foreign students. While certain text structures are used to achieve coherence, which

guides the reader in making the right inference; textual patterns used to express

coherence, vary among languages and cultures.34 Every language-culture has its preferred

ways of constructing discourse, that is, of organizing, expressing, and connecting

thoughts, out of all the conceivable devices.35 As such, differences in text patterns and

devices for coherence or “discourse links” between the first language and the second

language must also be addressed.36

A Chinese student explained that the English language relies heavily on word and

phrase transitions between sentences and paragraphs. While transitions, according to my

Chinese student, exist in the Chinese language, only one Chinese character is used to

express five different transition words in English. She, thus, finds it difficult to

distinguish among words like “further,” “thus,” “however,” “also,” and “additionally.”

This explains why many foreign students will repeatedly use one transition word.

In legal writing, there are specific discourse links that can be explicitly taught to

students. There are a few legal writing textbooks that do a good job listing commonly

used word and phrase transitions in legal writing. The differences among these words and

phrases will have to be explained explicitly, followed by sentence and paragraph writing

and editing exercises using legal topics and texts.

VII. Factual Analysis

Teaching foreign LL.M. students to explicitly analogize and/or distinguish facts

becomes even more challenging than teaching J.D. student to do the same. Most LL.M.

34
Connors, CONTRASTIVE RHETORIC, supra n. 10.
35
See, McDaniel, supra n. 19.
36
Id.

14
students are not only inexperienced with using cases in legal analysis and writing, their

prior legal training and rhetorical preferences may also interfere in the process, where

they were once used to basing arguments only on statute and arguing how the statute

applies to the facts of a case. Foreign students might not necessarily understand the value

of analogizing and distinguishing the facts of cases, but might deem it an unnecessary

exercise. This may require showing and explaining to foreign students exactly how this is

done through short writing exercises and by comparing one case to another. A foreign

student’s confusion on why there is so much emphasis on comparing the facts of cases

may well affect their participation in other law courses and their ability to synthesize

cases into black letter law.

VII. Conclusion

While I have not addressed all the possible influences contrastive rhetoric may

have in legal writing pedagogy, I do hope that I have ignited some interest. Many of my

students agree and have stated that bringing the issues raised by contrastive rhetoric to the

forefront has helped them better understand and better participate in U.S. legal discourse.

By the end of the year, after en extensive legal research paper, I find that my students

have not only improved their ability to discuss and compare the U.S. legal system to their

own legal system, they have also participated in a discourse community they once found

complex. In the process, their language competency improves.

15