November 22, 2005
Thinking Like a Lawyer
In keeping with the holiday, I'll say that I am thankful for something that makes our students' lives miserable in the first year. I know that sounds sadistic, but stick with me for a minute, and I'll try to explain.
What I am thankful for is the maddeningly elusive and generally misunderstood art of "thinking like a lawyer."
First-year students become deeply frustrated by the phrase while we faculty throw it around with abandon. "Thinking like a lawyer." We'll teach them, we say, to think like lawyers; but we seldom define exactly what we mean — as if, like obscenity, they'll know it when they see it.
The problem, of course, is that they do not see it clearly at all in the first months of law school; and what they are attempting to see and eventually master is quite different from what many of them have ever seen or attempted in their lives to this point. The difficulty is compounded by popular notions of lawyers as clever tricksters who bend and twist words to mean whatever the lawyers wish them to mean. (See the Nov. 20 posting, "Looking Before One Leaps" for some insightful observations about the corrupting influence of such notions.)
So what is learning to "think like a lawyer" and why is it so hard to master? Well, let me suggest a definition that may help answer those questions: learning to think like a lawyer is learning to think with exacting precision about human relationships and human events. It's a loaded definition.
It means defining as precisely as possible where duties begin and where they end. It means determining the exact contours of rights and the precise limits of privileges. It means carefully and methodically tracing causes and effects at levels of precision lay persons seldom consider, at least in terms of human conduct.
It also means doing this type of thinking — difficult in its own right — alongside the even more difficult and foreign art of text-based reasoning. Most of our students have never been asked to interpret text with any sort of rigor or precision. Most have sat through endless high school and undergraduate "discussions" of literature that were little more than pooled ignorance. Most were never taught to analyze and interpret text with any demonstrable accuracy or precision. Most were never required to prove, using the text itself, that what they believe it says is what the author actually intended to convey. Most were taught that if to them, the central lesson of Macbeth is to avoid ambitious women, then that is what Macbeth means because, after all, that is what it meant to them.
Judges and lawyers won't put up with that nonsense. So our students must abandon their trust in their own gut reactions and lazy musings and learn to think clearly and precisely about human relationships and human events, even when those relationships and events defy clarity and precision; and they have to do it using a language riddled with vagueness and ambiguity.
Perhaps it is this demand for precision despite the unavoidable imprecision of human language and the profound complexity of even the simplest relationships that creates the impression of cleverness for cleverness' sake. Lawyers are forced to press logic to its breaking points to determine where its soundness ends, and judges are routinely forced to choose between equally compelling arguments that rest on equally compelling moral imperatives placed in tension by an accident of the human condition.
From a comfortable lay world of imprecise thinking, our students are thrust into a world where every argument is vigorously examined for flaws and missteps and where every proposition must be supported carefully and completely. They find a world where notions of justice are challenged, dissected, and pressed to reveal where they hold up and where they do not.
No wonder our students find law school so daunting. No wonder they lose confidence in their intellectual abilities for a time and even in their sense of justice and injustice.
It falls to us to combat the discouragement and cynicism that so easily overtakes them. The task falls to us because we know that despite what cynics say or bad results imply, most legal thinking is done, in the end, by most lawyers and most judges, to promote justice in human affairs. Lawyers may cynically growl that justice is not what is likely to occur in court, but precious few believe that justice does not matter or that the causes for which they themselves plead are unjust.
Truly learning to think like a lawyer is a profoundly good thing. Without those who are willing to devote themselves to the intellectually and morally hard work of defining precisely the contours of justice, the nation is left to the murky reasoning of casual thinkers or, worse, to the calculated thinking of those who have no moral bearings.
So we have a duty to help our students understand what thinking like a lawyer is and what it should be. Some, of course, will fail altogether to master it; and some will master its mechanics without seeing the moral substance in which it must be rooted.
Most, however, will learn to think like lawyers in the best sense of that phrase. Because of them, our profession will always be something more than a collection of tricksters and illusionists.
That's something to be thankful for; and here's another: we have the privilege of helping them get there. Not a bad way to spend our lives, is it? (dbw)
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