“You come in here with a head full of mush and you leave thinking like a lawyer.”
— Professor Kingsfield, The Paper Chase, 1973
Kevin Twitty, a software engineer “with a hobbyist’s interest in law,” sent an email asking for an explanation of what it means to think like a lawyer. This isn’t exactly a new question, and others, like Lawprof Nancy Rappaport, have written at length on the question (and from whom I borrowed the opening line above).
The concept of thinking like a lawyer was at the heart of the movie The Paper Chase, which was meant as both homage and condemnation of legal education, and provided the first popular glimpse into the pressure and insanity of becoming a lawyer.
The answer to Kevin’s question isn’t all that hard. Thinking like a lawyer, at its most basic, is taking a myriad of facts, identifying the salient facts, spotting the issue and analyzing the law as it applies to the issue. Saying this is easy. Doing it is not.
When someone walks into a lawyer’s office, they will tell their story. It’s usually a long story, convoluted and filled with extraneous details, all of which matter enormously to the story-teller because they suffered the details. It’s the lawyer’s job to focus, to sift through the details and figure out which are relevant (tends to make a fact more or less probable) and material (bears a logical connection to a fact in issue), and which are simply there, background noise of no consequence to whatever the core issue may be.
Learning the law itself, whether statutory or caselaw, is just a matter of time and memory. Once one understands the rules of statutory interpretation and how to read a legal opinion, it’s a matter of finding the ones that apply to a given set of facts and applying them. To non-lawyers, this often seems to be the “hard part” of lawyering. To lawyers, this is just a matter of putting in a little time and effort. It’s just a matter of doing some reading.
What the law is can be confusing, only because courts tend to be inconsistent at times, where decisions are issued with absolute certainty that are in direct contradiction of another decision, also issued with absolute certainty. Law isn’t always science, with an equation that gives a reliable answer, because words are poor mechanisms to convey very specific messages, and judges don’t always use them well.
Non-lawyers love quotes from opinions that are broad, vague and heroic, projecting onto them meanings they wish them to have. Lawyers see the same words and get a headache, recognizing them to be warm, fuzzy and largely empty. They’re rhetorical candy, good to sweeten up any argument, but almost always unpersuasive. They’re often carefully crafted to convey an impression without legal consequence, often in dissent, because their authors have a strong sense of what they seek to say but realize that they float on air, weightless, to be tossed about at any reader’s convenience.
When a client explains his situation to a lawyer, and the lawyer parses the dull from the shiny, the significant from the background, in the facts, conflicts often arise, just as they do in the comments here. To the lawyer, only the facts that affect the outcome matter. To the client, every detail matters. The lawyer thinks in terms of what makes the client’s cause more or less likely to prevail. The client demands that the lawyer care about what matters to him. After all, he endured it, and the damn lawyer better feel his pain and exact the requisite pound of flesh.
Thinking like a lawyer demands that the lawyer not become a mere proxy for the client. This isn’t to say that a lawyer needs to be unempathetic, though this is a sticky problem as showing empathy is often misinterpreted as agreeing with the client’s vision of relevance, and empowers the client to pursue tangential beefs rather than focus on the important ones.
Some lawyers prefer to handhold clients, catering to their sensitivities at the expense of addressing the relevant legal issues. Others prefer to guide clients to understand why some things matter and others, deeply important perhaps on an emotional level, are of no relevance at all on a legal level.
Since The Paper Chase, the notion of thinking like a lawyer has gone out of fashion to some extent, with a push for the pedagogy to put its efforts toward teaching the nuts and bolts of the law rather than acquiring the skill to turn mush-minds into lawyers. The former is easier and less stressful, but produces lower-level thinkers who are capable of performing tasks as long as there are no unanticipated problems. They are adept at the routine.
The latter, teaching people to think like a lawyer, is far harder, and certainly more challenging. Lawyers don’t let shiny details, no matter how interesting or personally disturbing, impair their detached vision. They don’t let their personal interests or issues interfere with their obligations to the clients. Thinking like a lawyer demands a harsh dedication to reality, a self-sacrifice of ones own bias.
Thinking like a lawyer demands a dedication to harsh logic, not merely because we strive to be able to present rational arguments, because reliance on emotion or logical fallacies will usually be the kiss of death before the court. On the other hand, judges feel no similar compulsion if they want to reach an outcome that defies logic. Reason can be a brutal one-way street, particularly for a criminal defense lawyer.
Wrapped up in cases are often issues that fascinate us, that we would love to sink our teeth into, but have no legitimate bearing on the client’s needs. We forsake our interests because the client’s are the only ones that matter. Recognizing, identifying, focusing on the issue at hand and the facts that relate, whether for or against, to the critical issues is the hard work of a lawyer.
Most lawyers struggle with accomplishing the goal of thinking like a lawyer. Most non-lawyers find it not only impossible to do, but can’t begin to conceive of why all the shiny things that strike them as interesting are of utterly no significance. It makes us unpopular at cocktail parties where cool people hang out, but effective in court. At least if we do it right.