{"id":24362,"date":"2015-04-03T09:48:55","date_gmt":"2015-04-03T14:48:55","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=24362"},"modified":"2015-04-03T09:48:55","modified_gmt":"2015-04-03T14:48:55","slug":"law-and-the-horse","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2015\/04\/law-and-the-horse\/","title":{"rendered":"Law and the Horse"},"content":{"rendered":"

\"Horse<\/a>If you\u2019ve spent much time around me, you know that I\u2019ve got horse-crazy daughters.\u00a0 My oldest is fourteen, and she\u2019s just starting her tenth year of riding.\u00a0 Her sisters joined in the fun a couple years after she started.\u00a0 That has meant all sorts of things for our family, one of which is that I\u2019ve spent an awful lot of time watching riding lessons.<\/p>\n

It\u2019s 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.\u00a0 There are, I\u2019ve concluded, lots of connections, and so in this post I\u2019m going to try to persuade you of two things:\u00a0 The first is that learning to be a lawyer is in meaningful respects similar to learning a skill like how to ride a horse.\u00a0 (Or, for that matter, figure skating<\/a>.)\u00a0 Both processes involve not merely the acquisition of information, but also a somewhat ineffable sense for how to engage in an activity.\u00a0 The second is that those similarities can help provide some interesting perspectives on what we do in law schools.<\/p>\n

I am breaking no new ground in making the first point. \u00a0Karl Llewellyn, for example, wrote of the value to lawyers and judges of \u201csituation sense\u201d and \u201chorse sense\u201d and of understanding that \u2013 and even more, understanding how \u2013 legal rules will often tell a tale that is incomplete or even wrong when applied to certain fact patterns.\u00a0 This is a view of law as a craft.\u00a0 Doing it well requires cultivating an often inarticulable sense of what sorts of responses are appropriate to which situations.\u00a0 We might call it judgment.\u00a0 Some of this is doctrinal knowledge, the content of the \u201claw.\u201d\u00a0 But, Llewellyn admonished new law students, as memorialized in The Bramble Bush<\/em>, \u201cit does not make so very much difference whether you remember the specific rules.\u00a0 Good, if you do.\u00a0 But even if you do not, there remains a deposit, formless, curious\u2014but one which informs your hunches in the future.\u201d\u00a0 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\u2019t learn much.<\/p>\n

<\/p>\n

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.\u00a0 Recognition comes gradually.\u00a0 For me, one of the most enjoyable aspects of my professional development was noticing the emergence of this sense.\u00a0 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.\u00a0 I could without much effort grasp some of the ways in which the situation before me was like \u2013 and distinct from \u2013 those I had seen in the past, and I could react accordingly.<\/p>\n

So it seems to be with riding a horse. \u00a0I 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. \u00a0To 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\u2019t go precisely as anticipated.\u00a0 This did not happen overnight.\u00a0 \u00a0The 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.\u00a0 Many lessons feature a scene in which the trainer says \u201cdo it one more time,\u201d which usually turns out to mean \u201cdo it again until you get it right.\u201d\u00a0 And then they stop, in the hopes that the feel of that last ride, the correct one, will stick.<\/p>\n

How does this relate to what we do in law schools?\u00a0 One thing it suggests to me is the need to remain mindful in my teaching not to emphasize the \u201cwhat\u201d at the expense of the \u201chow.\u201d\u00a0 Less \u2013 in terms of pages covered in the casebook, topics studied, and so on \u2013 might indeed be more \u2013 in terms of useful knowledge imparted via more deliberately working through the material.\u00a0 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.<\/p>\n

Here\u2019s why I say that: I have witnessed an awful lot of riding instruction over the past nine years. \u00a0By my quick count I\u2019ve watched my daughters be taught by at least nine different trainers, and with five of those it\u2019s been fairly extensive.\u00a0 I\u2019ve also sat in on a number of clinics, including one in which perhaps the nation\u2019s top trainer taught a group of very experienced, mostly professional riders.\u00a0 All together I\u2019m 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.<\/p>\n

I\u2019ve paid reasonably close attention for most of those hours, which means I\u2019ve learned quite a bit about riding.\u00a0 I can do a fair job of predicting the best approach to a course of jumps, and I can spot basic rider errors.\u00a0 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.\u00a0 (It\u2019s telling, I think, that I\u2019ve 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.\u00a0 That suggests to me that the truly key knowledge is much more subtle and can\u2019t easily be put into words.)\u00a0 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.\u00a0 (Or so it seems to me.\u00a0 Perhaps I flatter myself too much.)<\/p>\n

So I\u2019ve come to know a thing or two about riding.\u00a0 But it\u2019s all \u201cwhat\u201d and no \u201chow.\u201d\u00a0 It\u2019s 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.\u00a0 No doubt I\u2019d have an advantage over the beginner who hasn\u2019t been spending his weekends as I have.\u00a0 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.<\/p>\n

One of my daughters\u2019 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.\u00a0 (She put it much more colorfully than that.)\u00a0 I don\u2019t think I\u2019m 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.\u00a0 (I, too, might have put it more colorfully than that.)\u00a0 Both of us recognize now just how wrong we were.\u00a0 Thinking we knew so much was nothing more than a sign of how little we actually knew.<\/p>\n

I don\u2019t intend here to lodge some sort of broad indictment of legal education.\u00a0 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\u2019 careers.\u00a0 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.\u00a0 To use Llewellyn\u2019s 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.<\/p>\n

One of the criticisms of law schools in recent years is that we fail to produce practice-ready graduates.\u00a0 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.\u00a0 Sending a rider out on a course of jumps before she has learned to control her horse is to court disaster.\u00a0 And getting to the point where she has that control takes time, and repetition, and that\u2019s a big part of the recipe for advancing in the sport more generally.\u00a0 So, too, in the law.\u00a0 It\u2019s no accident that the law-firm partnership track is as long as it is.<\/p>\n

What we can do in our time with our students \u2013 especially those of us who teach in the first year \u2013 is focus on developing the beginnings of that situation sense that Llewellyn speaks about.\u00a0 I have found myself as an instructor placing an increasing focus on the arguments that the parties use (or could use).\u00a0 What are they in this case?\u00a0 How do they relate to those we have seen before?\u00a0 Why does the court accept or reject them?\u00a0 We do not ignore the \u201cwhat,\u201d even as I recognize that much of it will quickly be forgotten, but I try to emphasize the \u201chow.\u201d\u00a0 It is less tangible, sometimes frustratingly so.\u00a0 But I believe it is also more enduring.<\/p>\n

Two more observations.\u00a0 The first is that advanced equestrian instruction seems to me to almost invariably involve a return to basics.\u00a0 One might think that higher level instruction would involve higher jumps.\u00a0 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.\u00a0 I won\u2019t explore this thought fully here, but I\u2019m led to wonder whether it counsels against an instinctive dismissal of legal theory.\u00a0 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.\u00a0 Jurisprudence, it turns out, may have its place on the CLE calendar.<\/p>\n

The second is that this way of thinking about law school\u2019s place in professional development.\u00a0 One often hears complaints that law school faculty as a general matter lack sufficient practice experience.\u00a0 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.\u00a0 But it\u2019s important to realize that we in law schools are dealing with beginners, at least at the outset.\u00a0 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.\u00a0 Some feel for the \u201chow\u201d of the day-to-day practice of law seems important.\u00a0 But it\u2019s not the feel of how to litigate the biggest case or put together the most complex transaction.\u00a0 The wisdom that distinguishes the thirty-year practitioner is the sort that will most benefit the lawyer who has been at it a while.<\/p>\n

There is much, much more to be said about all of this, and about the pitfalls and benefits of this sort of analogy-making.\u00a0 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\u2019ve had the pleasure of watching in action.\u00a0 My daughters weren\u2019t the only ones you were teaching.<\/p>\n

 <\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

If you\u2019ve spent much time around me, you know that I\u2019ve got horse-crazy daughters.\u00a0 My oldest is fourteen, and she\u2019s just starting her tenth year of riding.\u00a0 Her sisters joined in the fun a couple years after she started.\u00a0 That has meant all sorts of things for our family, one of which is that I\u2019ve 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