Earlier this week, at Legal Blog Watch, Carolyn Elefant asked “Have You Learned to Think Like a Lawyer?.” She pointed to an upcoming law journal article with the title “Thinking Like a Lawyer: The Heuristics of Case Synthesis,” 40 Texas Tech Law Review (forthcoming 2007; 53-pp pdf.; abstract), by Jane K Gionfriddo, Boston College Law School Associate Professor of Legal Reasoning, Research & Writing. (And see, Law Librarian Blog & Future Lawyer) After noting that the current trend seems to be tilting the law school curriculum away from theoretical studies in favor of teaching “more practical skills,” Carolyn poses some important questions:
“Do you think law school teaches students to think too much like lawyers — or not enough? And is thinking like a lawyer a skill that some are born with — or one that can only be acquired through training and practice?”
For my money, there is no more practical skill than truly learning how to “think like a lawyer.” For me, thinking like a lawyer is a good and necessary thing for persons holding themselves out as lawyers, judges, and law professors. Indeed, far too many so-called legally-trained professionals do far too little thinking like a lawyer — as opposed to their sounding like they think a lawyer should, by employing various verbal tricks and affectations.
At a minimum, “thinking like a lawyer” should mean being able to:
- recognize both the legal issues raised by a fact situation ["issue-spotting"] and the additional facts needed to offer a competent legal opinion on the matter
- ascertain or discern which laws and judicial opinions are relevant in analyzing and solving a particular problem; and, as Prof. Gionfriddo explains, be able to properly “synthesize a series of cases.”
- Also, know when you need to refer a matter to a lawyer with the expertise required to efficiently and competently handle a proffered or encountered matter
- understand when and why an analogy is strong or weak
- know when a factual distinction does or doesn’t make a legal difference, and be able to articulate why
- recognize when factors other than the apparently applicable black-letter law or judicial precedent (e.g., equities, history, economics, social or political policy, etc.) need to be considered in deciding upon a course of action, giving advice to a client, or addressing a court, legislature or regulator.
If you closely listen to, or read, the discourse and legal argument of most law school graduates, it’s very difficult to conclude that they have had too much instruction in thinking like a lawyer or are using those skills excessively. Some readers might think this assertion is strange, coming from a haiku poet who is a “recovering” ex-lawyer, and who spent the last half of his legal career advocating the use of mediation over litigation. But, long-time visitors to this website shouldn’t be surprised. As I wrote in 2005, in “differences we can’t see,” when praising Adam Cohen’s New York Times op/ed column, “An SAT without analogies is like: (A) a confused citizenry,” March 13, 2005):
The most maddening and sad intellectual weakness I have seen in two years spent within the blogosphere has been the inability of so many young lawyers and law students to know when distinctions make a difference, and whether analogies are weak or strong. Thus, Adam Cohen’s op/ed piece in today’s NYT should be required reading for all educators and all who wish to fulfill the role of lawyer, pundit, politician or citizen competently.
Similarly, in “analogically correct” (April 12, 2005), I hailed publication of Harvard Law Professor Lloyd L. Weinreb‘s 2005 book Legal Reason: The Use of Analogy in Legal Argument (Cambridge Press 2005). In the face of arguments from heavy-hitters like Richard Posner, Edward Levi and Cass Sunstein against the use of analogical reasoning by judges and lawyers, Prof. Weinreb wrote Legal Reason to explain that the use of analogical reasoning is dictated by the nature of law, which requires the application of rules to particular facts. I was pleased to say that the book “helps the reader learn how to separate the analogical chaff from the whole-grain variety (my lame comparison, not his).”
Cohen notes: “Intentionally misleading comparisons are becoming the dominant mode of public discourse. The ability to tell true analogies from false ones has never been more important.” I’m afraid, however, that either of two different-but-disturbing things are going on when we see misleading comparisons and faulty reasoning by lawyers and law students. They are:
- unaware of how poorly they reason and/or express their argument and reasoning; or
- they are in fact intentionally using misleading comparisons, because they believe that “thinking like a lawyer”(especially in our adversarial system) gives them license — or even an obligation — to do so
I’m afraid that every law student and graduate has faced the situation humorously mentioned by Future Lawyer Rick Georges: being chastised by a friend or loved one (and especially a spouse, significant other, or other romantic interest) for “thinking like a lawyer” in situations where doing so is purportedly inappropriate, irrelevant, or just plain annoying. Of course, the critics are often merely miffed over having their own faulty logic, missing elements, or weak arguments pointed out by their legally-trained companion. Admittedly, at times, the legal professional is indeed inserting an argumentative attitude into an inappropriate situation. But, more often, the problem is that the lay public is equating or mistaking “thinking like a lawyer” with thinking like a mediocre or incompetent lawyer, or a socially-or-morally-challenged one — one who is not aware that thinking like a lawyer does not mean forgetting or eschewing other human wisdom and virtues.
the autumn evening…
like frogs hopping!
rain on the grass
………………………………… by Kobayashi Issa, translated by David G. Lanoue
A couple years ago, I ran across two thought-provoking law review articles with very different perspectives on legal thinking. The first is “Thinking Like A Lawyer: Second Thoughts,” 47 Mercer L. Rev. 511, by Univ. of West Virginia Law Prof. James R. Elkins. I’ve often referred to Jim Elkins at this weblog, because he is the lawyer-poetry maven behind Strangers to Us All, the website devoted to lawyers who write poetry, and editor of Legal Studies Forum, which has produced several volumes filled with lawyer poetry (including my own) (here, here and there). In his article, Jim Elkins says that “Law teachers advance ‘legal thinking’ by teaching their students that everyday thinking is inadequate and that images of law held by outsiders are naivé.” He warns:
Law teachers who seek to teach their students to “think like lawyers” should be honest with their students: legal thinking may not be a distinctive form of thought, and to the extent that it is a distinctive way of thinking, it may be a dangerous one. Law teachers who teach “legal thinking” should warn their students of the known hazards of legalistic thinking. When law teachers fail to warn their students about the questionable nature, limits, and dangers of “legal thinking,” they lead them astray.
The second article was written in response to Jim Elkins’s; it is “Uneasy Burden: What it Really Means to Learn to Think like a Lawyer,” 47 Mercer L. Rev. 543, by Peter R. Teachout, Professor of Law, Vermont Law School (Note: Prof. Teachout’s wife, Vermont Superior Court Judge Mary Teachout, was a favorite friend of mine three decades ago in law school, but I have never met Peter.) Prof. Teachout starts his article with two quotes:
If you think you can think about a thing that is hitched to other things without thinking about the things that it is hitched to, then you have [learned to think like a lawyer].
………………. Thomas Reed Powell
It imposes the uneasy burden and occasional joy of a complex double vision, a fluid, ambivalent response to men and events which represents, at its finest, a profoundly civilized adjustment to the cost of being human in this modern world.
………………………. Ralph Ellison
To my surprise, this aspiring haiku poet found himself nodding in agreement when reading Peter Teachout’s rebuttal to the Elkins article. Here are some excerpts that capture the essence of his argument, with which I agree, and which (along with Jim’s) deserves a full reading [emphases added]:
“Reduced to its essence, Elkins’ indictment of traditional legal education rests upon two core, Pirsig inspired [from Zen and the Art of Motorcycle Maintenance], claims. First, that legal education is morally incapacitating because it teaches us to keep radically separate that which is moral from that which is legal and, furthermore, to be concerned only with that which is legal. Second, that legal education is destructive of the self because it teaches us to deny every aspect of our response to experience except that which is purely and technically legal. Learning to think like a lawyer, under this view, is doubly disabling: not only does it prevent us from seeing and dealing intelligently with moral issues, it renders us incapable of responding to experience as human beings. But are these claims valid? Are these in fact the necessary consequences of “learning to think like a lawyer”? Is Elkins’ indictment, in short, a fair one?
“My own view, which I elaborate below, is that, carried along by Pirsig’s influence, Elkins ends up getting things exactly backwards. I know that there are radical positivists who insist that law ought to be kept entirely separate from morality, and I also know that there are bad law teachers — there are “Professor Lawsons” out there — and to that extent Elkins has a point. But the mainstream tradition of legal education in this country, it seems to me, has always emphasized the key role played by morality in the development and understanding of the law; it has always taught that we proceed at our hazard if we ignore the close and intimate interrelationship between the two. Indeed, I would go beyond mere rebuttal. Not only is a legal education not morally incapacitating as Elkins claims; if anything, I would argue, it offers those who take it seriously a more complex understanding of the moral dimensions of experience.”
“As Plato’s performance in the Gorgias demonstrates, as does [Justice Robert] Jackson’s performance [as the Chief United States Prosecutor] at Nuremberg, there is no inherent inconsistency between being thoughtful, focused, and self-critical on the one hand, and being poetic and caring and human on the other. Making connections between the imagination and the critical judgment, between the heart and the head, between feeling and thinking, may not always be easy, but that is not to say that such connections cannot be made.
“So the problem in the final analysis is not losing one’s poetic capacity, but finding ways to make connections between what one knows specially as a lawyer and everything else that one knows. This brings us, I think, to the core problem: It is not that the connections cannot be made, it is that they are not always easy to make. Indeed, there often exists a tension between how we see the world as lawyers and how we see it in our other capacities, which means that making connections– certainly, making them in a fresh and original way–often requires a considerable art.”
Do we need more and better “thinking like a lawyer” within the legal profession and at our law schools? If the term is understood the way Peter Teachout describes it, we surely do. [find more excerpts from the Teachout article below the fold, by clicking on the more link] As I said at the beginning of this piece, there is no more practical skill for a lawyer to possess than truly learning how to “think like a lawyer.” It is the core skill, the foundation, upon and around which all the other “practical skills” must be built. It is the skill that truly adds value to a problem presented by a client, and that is most likely to lead to viable, “winning” solutions. So, I may still get a bit annoyed when someone says that I “look like a lawyer.” But, I am proud to agree when I’m told “you think like a lawyer” — although I’m very likely to add, “like a good lawyer.”
[cover detail] Legal Reason: The Use of Analogy in Legal Argument , by Lloyd L. Weinreb (Cambridge Press 2005; cover design James F. Brisson)
p.s. Carolyn Elefant asked “is thinking like a lawyer a skill that some are born with — or one that can only be acquired through training and practice?” As often happens, Carolyn might be a bit more optimistic than I. It seems to me that some people are indeed born, or at least enter law school, already capable of “thinking like a lawyer” reasonably well, and able to improve even more with training and practice; that many of those who do not yet have the skill can, with competent training and diligent practice, become quite good by the time they graduate from law school or soon thereafter; but that there is a not-insignificant number of law students and graduates who apparently will simply never be able to competently think like a lawyer. Bar exams should be aimed at finding and filtering such poor thinkers out of the profession.
lending the scarecrow
……………………………………… by John Stevenson
the farmer dresses the same
as the scarecrow
…………………………………….. by jim kacian
moving backwards –
…………………………….. by gary hotham
in the west
battling like ancients monks
even the servant
poses like a saint…
new summer robe
………………………………… by Kobayashi Issa, translated by David G. Lanoue
they point out
the differences –
……………………………….. by dagosan [March 23, 2005]
two voices that sound alike
make their way…
clouds of blossoms
like the humans
a monkey too
curled up for siesta
my shadow looks
like the Old Man’s!
first winter rain
cursing like sailors
at the plum tree…
like the teeth of a comb
pilgrims from the north
an upright scarecrow
can’t be found
like he just now
spotted a star…
in winter wind
they don’t seem like women…
around the fire
night after night
the autumn mountains
………………………………… by Kobayashi Issa, translated by David G. Lanoue
……. ….. Below the fold, you will find additional quotations from Prof. Peter Teachout’s article, including his explanation of the “sentimental fallacy.”