Thinking Like a Lawyer Redux

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This week, Marquette University Law School welcomed its Class of 2015.  The start of an academic always has an energy to it unlike other times during the year.  Excited and nervous 1Ls begin their journey to their J.D.s, steeped those first couple weeks in what seems like a foreign culture with a foreign language. While they’re not exactly sure what they’re going to learn in those 1L classes, new students do understand, within days of being in Eckstein Hall, that what they will learn is how to “think like a lawyer.”  Whatever that means.  With that, I am reposting something I wrote several years ago that remains important:  “Thinking like a lawyer” is a legal skill, not a life skill.

At 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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2 Responses to “Thinking Like a Lawyer Redux”

  1. Matt Mitten Says:

    Sound advice, which I continue to remember being given by Bill Lawrence, my contracts law professor, during my very first law school class many years ago!

  2. Joseph Hylton Says:

    For an “upbeat” defense of the Socratic method, see “The Socratic Method: in defense of rubbing first year law students the wrong way,” which is written by a Canadian Law Student. http://lawschoolpoor.com/2011/09/18/socratic-method-in-law-school/

    Any student, faculty member, or alumni interested in the Socratic Method and its role in legal education should read Northwestern Professor Anthony D’Amato’s “The Decline and Fall of Law Teaching in the Age of Student Consumerism” which appeared in the Journal of Legal Education in 1987. (D’Amato’s article is discussed at some length in the above cited blogpost.)

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