Thinking Like a Lawyer

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Category: Legal Education, Legal Ethics, Legal Practice, Marquette Law School
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150px-Paper_Chase_BookAt the start of each academic year, I cannot help but to think of Professor Kingsfield, the notorious contracts professor in The Paper Chase. The various classroom scenes where Professor Kingsfield grills student after student on classic contracts cases like Hawkins v. McGee have for years served as a sort of example of the “typical” 1L experience with the dreaded Socratic method.

While Professor Kingsfield surely sits at one end of the spectrum for professorial style, the Socratic method he uses endures.  It is, as one text notes, law school’s “signature pedagogy.”  It’s the way the law school professors across the country have been teaching law students about legal analysis for more than a century.

And students learn.  They begin their first year of law school with, to paraphrase Professor Kingsfield, “a head full of mush.”  Even by the end of that first semester, though, most 1Ls have developed an ability to turn that mush into cogent analysis, to make fine-line distinctions, to look for weaknesses in another’s argument, and to argue both sides of any issue; in other words, they learn to “think like a lawyer.”  This “thinking like a lawyer” is undoubtedly a necessary professional skill; however, mastering the process can come at a personal cost.

For all of the successes of the Socratic method, some have argued that it has serious flaws.  Most recently, Professor Elizabeth Mertz has criticized the Socratic method because of its “acontextual context.”  She notes that the Socratic method virtually ignores morality and social context in its attempt to teach students “objective” analysis.

Most lawyers will readily agree that to “think like a lawyer” is to think differently than others.    For some, this is unsettling because the rational, analytical processes one gains while learning to “think like a lawyer” can make them feel that their core values are being challenged or even changed.  Professor Lawrence Krieger, in his pamphlet “The Hidden Sources of Law School Stress,” says that “[i]f you begin to ignore your sense of right and wrong . . . in order to rationalize any possible outcome, you will dampen the ideals and values that brought you to law school in the first place.”  This loss of connectedness to one’s long-held personal beliefs affects one’s sense of self.

This shift in thinking can also mean a shift in the law student or lawyer’s personal relationships.  Several years ago, Marquette Law School alumnus Steven Radke was asked to give remarks at a reception during Orientation.  Among the many wise things Radke said was this:  “Over the next few years, you will develop a highly tuned ability to make distinctions that do not make a difference to most people, a capacity to see ambiguity where others see things as crystal clear, and an ability to see issues from all sides.  You will be able to artfully manipulate facts and sharply and persuasively argue any point. . . . [But] your spouse is not the appropriate person on whom you should practice any of these skills.”  For that matter, neither are parents, children, and friends who themselves are not lawyers.  I will never forget a classmate of mine telling a story about her mother, a lawyer, who once spent a long day in depositions.  The mother asked my classmate, then a girl six or seven, I believe, how her day at school was.  My classmate’s response was the kind of simple, non-detailed answer children are apt to give.  The mother said, “That answer is non-responsive to the question.”

It is good to remember, as Professor Lawrence Krieger says, that to think like a lawyer is “a legal skill but not a life skill.” It can be hard not to bring to our daily life situations the same thought processes in which we have been inculcated and with which we earn our living.  In fact, it probably requires as much discipline as we used in learning those processes, if not more.  I can think of innumerable occasions when I have been told by people close to me that I was “using that lawyer-speak again.”  And they weren’t meaning that as a compliment.

Then-Assistant Dean Meg Gaines once wrote in a student newsletter when I was a law student at the University of Wisconsin – Madison that “law school trains us to stay in our heads – in our rational minds.”  But, she added, “good relationships necessitate a broader consciousness,” and it was “integrating . . . our whole selves” that made us “better professionals and better people.”  I remember that newsletter article well, and I remember where I was standing in the law school when I first read it.  I can’t say that I have always been able to put aside the “lawyer-speak” and “lawyer think” when I have interacted with people close to me.  But with each new group of nervous but enthusiastic 1Ls in the fall, coming to my class in the very early stages of their legal training, I am reminded that it is important not to let that legal skill of “thinking like a lawyer” become a life skill.

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5 Responses to “Thinking Like a Lawyer”

  1. Sean Horkheimer Says:

    These are some great points.
    This past summer I read a great deal of depositions for work. My favorite lawyer-type question is the brief phrase used after summarizing a witness’ opinion or position: “Fair statement?”
    While hanging out with friends I found myself using it often. Non-lawyers find this phrase annoying. Especially if you intentionally mistate their original words when you use it. But that’s half the fun.

  2. Melissa Greipp Says:

    The biggest realization I made in law school is that the law is capable of multiple interpretations. The Socratic method, which is designed to draw out debate, helps to teach that point.

    You raise a really good point, Lisa, about creating a professional identity as a lawyer and integrating that identity with one’s non-lawyer persona. Lawyers and other professionals need to learn how to speak like a competent person in their profession–to be able to engage in a professional discourse. After a while, that form of communication becomes second nature to most professionals.

    The time spent in law study and in being a lawyer, though, is what I think causes many people to forget who they are outside of their law practice and to sound foreign to others. Maybe one way to counteract that potential problem is to spend purposeful time with non-lawyer friends and family members and to maintain outside interests. That suggestion may sound basic, but when faced with deadlines and the pressures of practice (or study), it can be daunting to squeeze in any outside interests.

  3. This is magnified when people who already have the tendency to “make distinctions that do not make a difference” are drawn to the profession, and law school rewards them for this natural behavior.

  4. I would advise students to speak up in class rather than cower. This is great training I wish I had participated more.

  5. Terrence Berres Says:

    On a related note, it might also be helpful to point out (as a CLE seminar did) that legal writing is a form of technical writing.

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