November 20, 2005
Looking Before One Leaps
Does this make you think? Like a lawyer? ...
Law students are told on every possible occasion that they must learn to think like a lawyer, and since they are eager to become lawyers and trust their teachers, they are eager to lend their mind to legal thinking. But the problem, as briefly noted here, is that they are given no instruction as to the powers and pathologies associated with legal thinking, or to the possibilities that clients may pursue. The logic seems inexorable: to be a lawyer you must think like a lawyer, to think like a lawyer you need a Legal Mind, to acquire this mind you must submit to teachers who know how to help you train for and develop this kind of mind-set. Law school provides a logic, a kind of thinking, and the mind willing to do it. But like Hippocrates, the law student, seems oblivious to how this Legal Mind might shape her character, or what might happen with the persistent use of such a mind.
Professor Elkins builds on the work of others, adding his own gloss to earlier writings warning of the dangers inherent in a legal education. He notes, for example, the words of UCLA's Professor of Law Emeritus Paul Bergman (photo below, right)...
Whether lawyers are heroes or bums, our culture often views courtroom lawyers as deviously clever tricksters. Perhaps good lawyers have the ability to master mountains of evidence and the patience to prepare for trial by endlessly culling through depositions. But the best lawyers can outsmart their adversaries, bamboozling witnesses and capturing the fancy of judges and jurors, with parlor tricks. Paul Bergman, Pranks for the Memory, 30 U. S. F. L. Rev. 1235, 1235-1236 (1996)
From time to time, we need to put our work into perspective. (djt)
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