Thinking Like A Lawyer

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.

19 comments on “Thinking Like A Lawyer

  1. Victor Medina

    I’m struck by your comments about teaching the skill. Whether it’s law school or apprenticeship, the skill needs to be honed to set a good lawyer out on the world (and his/her clients).

    I went to a law school where that wasn’t the way of the sword. I got my training getting my ass kicked by a federal district judge, then a big law partner or two, and then by a solo with 35 years in practice.

    Now running a firm and bringing people in to help, I’m faced with the need to train others. Necessary because it’s my clients at risk, and desirable as a way to leave good lawyers behind when I’m done (in 20 or 30 years).

    What I wonder is: how likely is it that some wants to learn to think like a lawyer? I’m meeting people who 1) will forsake it to make a quick buck, 2) want to work the line but never really be responsible for doing it (crank turners), and 3) think that the training shouldn’t go as far as it does – that 3/4 of thinking like a lawyer is better than most of what’s out there, and good enough for jazz.

    Is that just the way the population is made up? Have we done a poor job of impressing upon lawyers-to-be that *this* is the job…full out or go home. Can we do anything to get a better crop of potentials in from which to choose and train?

    1. SHG Post author

      Glad you asked an easy question, that doesn’t implicate the full panoply of issues surrounding the Slackoisie. There are young lawyers who get it, and ones who don’t. There are some who kinda get it but are lazy and want to see how much they can get away with. You can try to beat it into them, or find the ones who have the chops and let the others go to Cravath. Just because we can identify a problem doesn’t mean there is an easy solution.

  2. rich

    “… 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.”

    It’s ironic that this was prompted by a question from a software engineer, because this is exactly what I, a software engineer, do as well! Except instead of analyzing the law, I decide what technology will meet the real needs of the client (which the client may not state or even be aware of)

    1. SHG Post author

      Not being a software engineer, I can’t say whether the comparison is good or not. I will say that binary thinkers often have the greatest difficulty with analyzing fact patterns because they lack the requisite tolerance for ambiguity. Law is replete with unresolved ambiguity, which is something many people find impossible to accept.

      1. Mark Draughn

        Terrific post. As another software engineer with a spectator’s interest in the law, I have to say that everything you’ve described as thinking like a lawyer is exactly why I am intrigued by blawgs and stories about lawyering. It’s fascinating for me to watch a lawyer pick something over. “Don’t worry about that, it’s not really important, but this other stuff could be a real problem. And this thing of theirs over here seems to be missing some important bits.” On the other hand, your response to rich explains one of many reasons why I couldn’t be a lawyer myself. But I sure do like hearing you guys talk about it.

      2. se

        If you are the kind of Engineer that implements clients needs, you will not succeed if you are binary thinker. Clients demands are always fuzzy, ambiguous and often contradictory. The trouble is, software is never ambiguous and you need clear agreement on what will be done in advance if you want to avoid horrible final blame game. Our job is to disambiguate them, technology part is usually easy.

        So, Engineer will end up being accused of binary thinking, because of disambiguate stuff part of the job.

      3. Dave

        As a former software engineer who is now a lawyer I can say that very few legal issues are amenable to programmatic solutions and at best they are incomplete. I wrote a program for calculation of statute of limitations for habeas cases. For simple cases it can give you an exact answer but many times the best it can do is tell you, if a given time period is tolled, this is the result, if it isn’t, that is the result. And that is probably about as good as you can get. And then it is up to the lawyer to argue whether the tolling is appropriate (or when it should start or end). Really in the end it is just a fancy date calculator that saves the lawyer some time but is really incapable of saying for sure, by itself, if a case is what we call SOL.

        And to get more back on topic I also was going to say that the most difficult thing for me as a lawyer is where you appropriately apply relevant facts to the correct law and you lose anyway because the judge or judges don’t understand the law (or perhaps choose not to). From your postings it sounds like that is a frequent occurrence in the trenches of criminal defense. And there is nothing you can do about it generally except file an appeal (which is often a long shot even if you are right, as they love to find errors “harmless” after conviction.)

    2. JDM Post author

      @Rich
      I too was struck by how aptly SHG’s description of “thinking like a lawyer” would affect the fundamental process of my profession — medical diagnosis — and how differently we teach it.

      Just like SHG’s clients, my patients come to the office with a set of complaints, some serious and others trivial. Just like one will eventually gain familiarity with case law it turns out there are only so many diseases out there, and only a very small minority of those are common enough to show up in my office on a given day. So my initial job is just to listen to the story, pick out the salient details. By the time I begin the physical examination I am usually pretty sure of what the diagnosis is, or have to pick between two or three leading contenders. Labs and x-rays serve as much to protect me from the lawyers as to help the patient, as I am very rarely surprised by a lab result.

      What I find so fascinating is that the education of a physician seems the exact opposite of ShG’s discussion of legal education. Medical students spent two years (half of medical school) studying healthy and pathological human biology before we unleash them on the patients. Upon completion of the second year, you feel like you know everything about biology, chemistry, pathology and etc but nothing about treating sick people.

      For some reason, the thinking is expected to be absorbed in the apprenticeship stage of medical education (last half of medical school and residency.) I remember very few lectures about “how doctors think,” you were just expected to learn by doing, and somehow you got along. (Because physician cognition is an interest of mine, I discovered a robust literature on the topic, but got very little formal training on the topic.)

      In summary, the process seems very similar, but the education completely opposite.

      1. SHG Post author

        There is a lot of similarity, but there appear to be differences as well. For one thing, diseases don’t have their own lawyers and fight back, a big part of what the lawyer must integrate into decision making. Also, there are a limited number of diseases. There is no limit to the absurd or complex legal situations man can create for himself, often defying solution. And finally, medicine does what it’s supposed to, provided you are correct in your diagnosis. Neither clients nor courts can be relied upon to cure much of anything.

        1. david

          As an Australian surgeon with a hobbyist’s interest in American law (ours is boring because its predictable – fancy that), I’m gunna chuck in my two cents worth here as well.

          As my shirt-lifting colleague (surgeon joke) alluded to, most of the time you already have the diagnosis before you’ve sent them off for whatever tests float your boat. I think where surgery and some types of law align is in managing the patient / client expectations . . . and this is somewhat akin to reading an ouija board; get it wrong and all hell will break loose, get it right and you may well have just done yourself out of a fee.

          The patient who comes in with an inoperable tumour, that he/she wants you to fix because they googled it and it should be do-able, dag-nam-it; or the 60yo tennis player with knee arthritis who wants to get another five years out of his knee, and technology . . . they are the ones you feel like stabbing yourself in the eye with a pencil.

          How do you deal with these people? Who teaches you? I know damn sure med school didn’t (med school is where they park you until you are old enough to take verbal abuse without crying uncontrollably). I have no doubt law school is much the same . . . and having several friends who are now barristers (in Oz, like in the UK, these are the lawyers who actually go to court), they would all say they have more grief from the ones they SHOULD have said no to, as opposed to the ones they DID say no to . . .

          So how do you get here? I’m going to go old school here, and say some people can do it, and some people can’t. It can be improved, honed, polished, practiced – but if you don’t already have that bright diamond-hard “thing” of critical appraisal mixed with the right sort of communication skills and a hide like a rhino, it cannot be taught. Cannot.

          1. SHG Post author

            I think this is the professional’s dilemma, dealing with either unrealistic or misguided expectations of people who rely on others with knowledge they don’t possess. This is something we share.

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  4. Andrew

    thanks for this post! very helpful for if/when I’m a new client trying to work well with a lawyer.

    You know what would be awesome? A follow up post, “Billing like a lawyer,” which gives people insight into how the business of lawyering works and how you can either help your lawyer be efficient or waste their time and your money.

    BTW I’m new here, just added the blog to my feedly and love it!

    1. SHG Post author

      Bill is a different thing entirely. I’ve written about it here before, so you can always google, but it’s neither taught in law school nor consistent among different practice areas.

      But I will give you the one sentence answer: billing isn’t magic.

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  6. DM

    You should consider the possibility, as indicated by the comments from the surgeon and software engineer above, that these skills are more domain specific than you think, and arise more from subject-matter expertise (deep knowledge of the law means that you know what is important) than from generically superior cognition. This style of thinking arises in many other domains: the surgeon listens to the patient’s story and picks out the important symptoms; the software engineer listens to the client’s requirements and picks out the technically significant parts; the chess master looks at the position and takes in the important features at a glance.

    This has been the subject of study by cognitive scientists in the academic sphere (can we teach students to “think like historians/scientists/mathematicians”?), and my understanding is that the answer is generally “no”. In particular, it is not possible to successfully teach the generic skills separately from the domain-specific expertise, and that those who are experts at this kind of high-level cognition in one domain are no better at it than average in other domains (compared to others of similar general intelligence). This issue is discussed in the book “Why don’t students like school?” by Daniel Willingham of the University of Virginia (a book that is generally worth reading, if you are interested in the implications of cognitive science for education).

    1. Sgt. Schultz

      This may be the single most boring and pointless comment I have ever seen. I’m deeply sad for your spouse.

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