Law and the Horse

Horse and RiderIf you’ve spent much time around me, you know that I’ve got horse-crazy daughters.  My oldest is fourteen, and she’s just starting her tenth year of riding.  Her sisters joined in the fun a couple years after she started.  That has meant all sorts of things for our family, one of which is that I’ve spent an awful lot of time watching riding lessons.

It’s no surprise that spending that much time watching my daughters being taught a set of skills has led me to reflect on my own teaching.  There are, I’ve concluded, lots of connections, and so in this post I’m going to try to persuade you of two things:  The first is that learning to be a lawyer is in meaningful respects similar to learning a skill like how to ride a horse.  (Or, for that matter, figure skating.)  Both processes involve not merely the acquisition of information, but also a somewhat ineffable sense for how to engage in an activity.  The second is that those similarities can help provide some interesting perspectives on what we do in law schools.

I am breaking no new ground in making the first point.  Karl Llewellyn, for example, wrote of the value to lawyers and judges of “situation sense” and “horse sense” and of understanding that – and even more, understanding how – legal rules will often tell a tale that is incomplete or even wrong when applied to certain fact patterns.  This is a view of law as a craft.  Doing it well requires cultivating an often inarticulable sense of what sorts of responses are appropriate to which situations.  We might call it judgment.  Some of this is doctrinal knowledge, the content of the “law.”  But, Llewellyn admonished new law students, as memorialized in The Bramble Bush, “it does not make so very much difference whether you remember the specific rules.  Good, if you do.  But even if you do not, there remains a deposit, formless, curious—but one which informs your hunches in the future.”  Few of us remember much in the way of doctrinal specifics from our first semester in law school, but none of us could claim that we didn’t learn much.

Even so, it is difficult to appreciate at the outset that the acquisition of this type of intangible knowledge is a key component of becoming a lawyer.  Recognition comes gradually.  For me, one of the most enjoyable aspects of my professional development was noticing the emergence of this sense.  Whether it was being able to anticipate how an unfamiliar sort of transaction would be structured, or being able to offer an educated guess as to how an area of law that I did not know would treat a dispute, I had somehow picked up an instinct.  I could without much effort grasp some of the ways in which the situation before me was like – and distinct from – those I had seen in the past, and I could react accordingly.

So it seems to be with riding a horse.  I am routinely amazed at how much of what my daughters once struggled with has become second nature, a fact that is brought home every time I see a beginner ride.  To take just one example, plucked from relatively far along in their development, where my daughters once viewed themselves as riding over a series of individual jumps, they now see a course in which the problems presented by later jumps affect the way one rides the earlier jumps, and they can react on the fly when things don’t go precisely as anticipated.  This did not happen overnight.   The process has mostly been one in which each lesson and each ride brings with it incremental, usually imperceptible gains, which only occasionally lead to dramatic advances.  Many lessons feature a scene in which the trainer says “do it one more time,” which usually turns out to mean “do it again until you get it right.”  And then they stop, in the hopes that the feel of that last ride, the correct one, will stick.

How does this relate to what we do in law schools?  One thing it suggests to me is the need to remain mindful in my teaching not to emphasize the “what” at the expense of the “how.”  Less – in terms of pages covered in the casebook, topics studied, and so on – might indeed be more – in terms of useful knowledge imparted via more deliberately working through the material.  Put yet one more way, I try to remind myself not to prioritize conveying what lawyers might want to know at the expense of practicing what lawyers do.

Here’s why I say that: I have witnessed an awful lot of riding instruction over the past nine years.  By my quick count I’ve watched my daughters be taught by at least nine different trainers, and with five of those it’s been fairly extensive.  I’ve also sat in on a number of clinics, including one in which perhaps the nation’s top trainer taught a group of very experienced, mostly professional riders.  All together I’m likely on the far side of 500 hours spent sitting at the side of the ring watching instruction from the beginner to the elite level.

I’ve paid reasonably close attention for most of those hours, which means I’ve learned quite a bit about riding.  I can do a fair job of predicting the best approach to a course of jumps, and I can spot basic rider errors.  I have a sense of the things a rider must do to help a horse maintain its balance, and an intellectual appreciation of the fact that the inside leg and outside rein are the two most important components of control.  (It’s telling, I think, that I’ve heard inside leg and outside rein characterized as the key to riding in situations where students were relative beginners as well as where the students were professionals.  That suggests to me that the truly key knowledge is much more subtle and can’t easily be put into words.)  I have enough of an understanding of what one is supposed to do, and why, and enough of a feel for the vocabulary that I can hold up my end of a conversation with a trainer or experienced rider.  (Or so it seems to me.  Perhaps I flatter myself too much.)

So I’ve come to know a thing or two about riding.  But it’s all “what” and no “how.”  It’s not at all clear to me how easily I could put any of this knowledge to work if I were to climb on a horse and try it myself.  No doubt I’d have an advantage over the beginner who hasn’t been spending his weekends as I have.  But just as surely it would take time and practice for me to be able to actually use a lot of what I know. I have no feel for the process, no sense of how to take the things that I have learned and put them to work in the saddle.

One of my daughters’ trainers remarked not long ago that by the time she graduated from college she thought she was a very good rider who knew most of what there was to know.  (She put it much more colorfully than that.)  I don’t think I’m alone in having imagined, when I came out of law school, that I had most of the tools I would need to be successful as a lawyer.  (I, too, might have put it more colorfully than that.)  Both of us recognize now just how wrong we were.  Thinking we knew so much was nothing more than a sign of how little we actually knew.

I don’t intend here to lodge some sort of broad indictment of legal education.  We who teach in law schools are at the front end of what is ideally a process that extends over the course of our students’ careers.  Those of us who teach in the first semester of first year are the ones who watch them first climb into the saddle and make those first, tentative trips around the ring.  To use Llewellyn’s phrasing, we help to lay down the initial deposits, those that provide the base for the final form, but that will be covered over and rubbed at and otherwise reshaped as experience accumulates.

One of the criticisms of law schools in recent years is that we fail to produce practice-ready graduates.  No doubt there is room for improvement in that regard, but it is also important to recognize that there is only so much that we can do.  Sending a rider out on a course of jumps before she has learned to control her horse is to court disaster.  And getting to the point where she has that control takes time, and repetition, and that’s a big part of the recipe for advancing in the sport more generally.  So, too, in the law.  It’s no accident that the law-firm partnership track is as long as it is.

What we can do in our time with our students – especially those of us who teach in the first year – is focus on developing the beginnings of that situation sense that Llewellyn speaks about.  I have found myself as an instructor placing an increasing focus on the arguments that the parties use (or could use).  What are they in this case?  How do they relate to those we have seen before?  Why does the court accept or reject them?  We do not ignore the “what,” even as I recognize that much of it will quickly be forgotten, but I try to emphasize the “how.”  It is less tangible, sometimes frustratingly so.  But I believe it is also more enduring.

Two more observations.  The first is that advanced equestrian instruction seems to me to almost invariably involve a return to basics.  One might think that higher level instruction would involve higher jumps.  To the contrary, the higher level instruction that I have witnessed involves smaller fences, with the difficulty introduced in some other way that requires the rider to refine some fundamental aspect of her technique.  I won’t explore this thought fully here, but I’m led to wonder whether it counsels against an instinctive dismissal of legal theory.  Properly done (and I mean for that to be a meaningful qualification), theory involves the identification and exploration of fundamentals, which can in turn spur the thoughtful practitioner to a reconsideration of at least some aspect of her practice.  Jurisprudence, it turns out, may have its place on the CLE calendar.

The second is that this way of thinking about law school’s place in professional development.  One often hears complaints that law school faculty as a general matter lack sufficient practice experience.  I am sympathetic to the point, and certainly regard the nearly eight years I spent in the trenches as valuable, though not in its entirety essential, to my life as a teacher and scholar.  But it’s important to realize that we in law schools are dealing with beginners, at least at the outset.  Nearly all of what the Olympic-level trainer has to offer is lost on the new rider, and the same holds for the veteran practitioner.  Some feel for the “how” of the day-to-day practice of law seems important.  But it’s not the feel of how to litigate the biggest case or put together the most complex transaction.  The wisdom that distinguishes the thirty-year practitioner is the sort that will most benefit the lawyer who has been at it a while.

There is much, much more to be said about all of this, and about the pitfalls and benefits of this sort of analogy-making.  But I have already pushed the limits of the form, and so I will close with a short note of thanks to the horse trainers I’ve had the pleasure of watching in action.  My daughters weren’t the only ones you were teaching.



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