Wednesday, March 16, 2016

Cognition and Justice: New Ways to Think Like a Lawyer by Deborah Jones Merritt

Deborah Jones Merritt has written an important new article on legal education: Cognition and Justice: New Ways to Think Like a Lawyer.


"Practicing lawyers commonly pursue 'functional justice,' which I define as the peaceful resolution of competing interests. That justice includes two sub-types: rule-abiding justice and rule-changing justice. Law schools focus primarily on rule-changing justice, while practicing attorneys most often pursue rule-abiding justice. This article, delivered as a Hartman Hotz Lecture at the University of Arkansas, explores the problems arising from that rift.

The pursuit of rule-changing and rule-abiding justice require complementary, but somewhat different, cognitive skills. By overlooking the complex skills of rule-abiding justice, law schools fail to fully prepare their graduates to 'think like a lawyer.' Schools should continue to teach the skills of rule-changing justice, but must complement that work with more attention to rule-abiding justice. Otherwise, clients suffer and lawyers risk losing more of that work to other professionals."
"This cognitive skill, recognizing patterns and developing productive filters, is essential in law practice. It is especially important for the lawyers who pursue rule-abiding justice. In those cases, the legal analysis is relatively straightforward. The quality of the client’s outcome depends, not on the lawyer’s ability to apply the law to the facts, but on her ability to navigate the other elements of the representation. Lawyers who excel at recognizing patterns and developing smart filters will reach the most successful outcomes for their clients."
Key point: "[W]e now know that the skills needed to provide rule-abiding justice are as cognitively complex as those used to secure rule-changing justice."
"There is one more cognitive skill that practicing lawyers need: They must know when to throw out the old patterns and rules. Cognitive scientists do not fully understand this phenomenon. What triggers an expert’s decision to abandon established wisdom and pursue a new course? The expert must do this judiciously. Professionals who abandon patterns too often will flounder, waste time, and achieve poor results. Those who adhere doggedly to existing patterns, on the other hand, will fail novel challenges. An essential part of professional expertise is the ability to switch appropriately from pattern-based thinking to an untried approach."
I find Professor Merritt's distinction between rule-changing justice and rule-abiding justice and the different cognitive skills involved with each to be especially significant.

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