I think back with fond memories at being called “mustache man” when my torts professor demanded that I rise and explain the holding in Palsgraff v. Long Island Railroad. I hadn’t read the case the night before as I was supposed to, and Palsgraf wasn’t one of those cases you could fudge. As I stumbled with my cursory knowledge of the decision, which clearly showed that I hadn’t a clue, the professor then called “blond woman” to stand and state whether I was correct or a blithering idiot. Unlike me, she got the answer right.
One of the most recognizable rights of passage in law school is enduring the Socratic Method, being questioned in front of your law school classmates with the risk of public humiliation if you couldn’t muster a reasonable response on the spot. It was popularized in The Paper Chase , first by movie and then television, in which Professor Kingsfield, the quintessential Harvard lawprof, emasculated students for their inability to reason on demand.
Apparently, this right of passage has itself passed out of favor. Reading Dave Hoffman’s post at Concurring Opinions, I learned this from two of my favorite blawging lawprofs, Dave and Orin Kerr of VC fame, both of whom were contemplating their Big Wheels while I was called to explain Palsgraf. The post, about the difference between being smart and possessing wisdom as a qualification for the Supreme Court,
As Orin points out, the quality of the information we use to evaluate the smartness of judges is terrible. So why the focus? I blame the Socratic Method, which teaches young lawyers that being a good lawyer is the same thing as being a good debater: quick, witty, cutting, etc. We don’t want the smartest justice. We want the wisest.
Orin shot back:
I don’t see the connection to the Socratic Method. The Socratic Method does not reward intelligence; it rewards glibness. But as far as I know, no one claims to want a Supreme Court Justice who is exceedingly glib.
I began to get the impression that they didn’t care for the Socratic Method. I took no issue with Dave’s primary point, that smart and wise were hardly the same, and that wisdom was by far the more important attribute. But why blame it on the Socratic Method?
While there are many practice areas in the law, and niches within practice areas, where a lawyer enjoys the luxury of either speaking without anyone knowledgeable around to question his pedantic assertions, or the time to contemplate and reflect before providing an answer to a question, or the expectation that a twenty page memorandum, with footnotes and exhibits, will be forthcoming to respond to an inquiry, this isn’t the life of a trench lawyer. For these others, the Socratic Method is like death by a thousand knives, jabbing and poking his inadequate psyche and intellect, demanding that he performs in ways he can’t and never will. For these lawyers, it was humiliation and shame.
For the trench lawyer, this was preparation for life. We work with a gun to our heads, given half a second to analyze the situation, the spectrum of possible responses, ascertain the correct response, put it into comprehensible words and utter those words in such a way that we have served our client’s interest. And served it well. We don’t have the luxury of telling the judge in the midst of trial, “can we get back to you in a week or two on that one?” It’s now or never, do or die. Either we act or the opportunity is lost. Our argument either prevails or not, but we will never get another chance to object, question, argue, challenge, explain, justify, persuade.
“Glib” is such an ugly word. Whether meant as “superficial” or “insincere”, or just the ability to speak without forethought, the lack of substance notwithstanding, “glib” is not good. Is that really all the Socratic Method teaches?
Certainly, the Socratic Method is not a nurturing pedagogical tool. It’s not intended to make the student feel worthy and comfortable, to enhance self-esteem. Nurturing is the trend in law school today. I wonder what lawprofs a generation from now will have to say about it. I already know what I think of nurturing :
Law school is the time to learn how to beat them at their own game. Learn this and the rest is a snap. And if you go to one of those law schools where they are deeply concerned about how you feel about yourself and want to foster a nurturing environment, tell them you want your money back.
No use of the pejorative “glib” is going to change the dynamic of the courtroom. The judge will not say “denied” in a kindly, yet supportive, tone. Your client will not be sympathetic to your need for “more time” to think about whether to object to inadmissible evidence. There are good answers in a courtroom and bad answers in a courtroom, and the half second you have to distinguish between the two won’t get any longer because someone called the lawyer capable of addressing the question “glib”. Good answers are both timely and persuasive. Lack either one and it’s a bad answer, no matter how great an response you come up with a day or two later.
We work with a gun to our head, demanding that we analyze and react in a split second. We risk public humiliation if our utterances are foolish or incomprehensible. We face a room of people who are wholly unconcerned about whether we feel warm and fuzzy, and are by definition judgmental and critical. So what pedagogical exercise best prepares a law student to survive in this environment?
Like hemlines, teaching methods go in and out of style. After all, there would be nothing new to write about if the old methods weren’t deemed passé, and new methods lauded in their place. But unlike hemlines, it’s not a fashion statement of no substantive purpose. The Socratic Method forces law students to face the circumstances they will face in the courtroom, and to either figure out how to deal with it or figure out what else they should do with their lives. If you can’t handle the pressure, then you don’t belong in the trenches.
Certainly the skillset required to survive the Socratic Method isn’t the same as that requires to be an excellent judge. It’s not about wisdom, and no one ever said it was. But it doesn’t preclude wisdom either. Orin blames the Socratic Method for sucking the wisdom out of law students. I fail to see any connection whatsoever; those lawyers and law students who are so one dimensional that they are incapable of thought, of understanding, beyond a single teaching method were never destined for wisdom to begin with. If they have the capacity for wisdom, no lawprof is going to change that. Sorry guys, but you don’t carry that much influence.
Years ago, I was asked to allow a college student to intern with me for a month because she was considering a career as a lawyer and her mother wanted her to experience it first. It seemed like a smart move, and I agreed. I asked the young woman on her first day why she wanted to be a lawyer, and she told me that everyone said she should be because she liked to argue. And indeed, she did like to argue. Unfortunately, her arguments were markedly unpersuasive and ill-conceived, more of the ilk of mindless disagreement rather than thoughtful contrariness. She went on to a career teaching college psychology, where thought would never be involved.
Not everyone possesses wisdom. And we are not the judge of our own wisdom. We all think of ourselves as wise, and the vast majority of us are dead wrong. It’s up to others to decide whether our very finest thoughts qualify as wisdom. For the very few who possess this great gift, one essential to being a person entitled to sit in judgment of others, no teaching method will take it away. For those who lack wisdom, no amount of nurturing will provide it.
If your daily work involves putting nails into a piece of wood, it’s good to know how to use a hammer. It’s a poor craftsman who blames his tools, guys. You don’t teach wisdom. You can’t. But you do teach people to be trench lawyers, and the Socratic Method is a darned good way to do so.
Update: Ashby Jones found this sufficiently humerous to post about it at the WSJ Law Blog, evoking one comment that was just too funny not to share. By Anonymous at 2:32 :
It’s clear that Greenfield went direct from undergrad to law school. When I think of a profession in which people “work with a gun to [their] head, demanding that we analyze and react in a split second” I think of a stock broker. Lawyers prep anywhere from a few weeks to a few years for each of these confrontations, what’s more, they already know what the other side is going to say via motions and discovery.
.
What’s really killing the profession is that it has an artificial, academic barrier to entry, which walls out most people who understand how work is done in the rest of the world. And your left with people like Greenfield who have no real understanding of anything outside of law.
Hey, what would a kid like me know?
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During the first week I blew off standing in line for the booking photo after an hour. So I never got called on. Except once! That was a howler.
Every time a professor called on me, I pretended to be asleep. Maybe that’s why I’m in the public sector and not teaching somewhere.
Wow – you were called on for Palsgraf – that is classic.
I agree that the Socratic Method is good preparation for standing up to a judge. And I never understood why some of my classmates took it so seriously (one of my classmates memorialized Black Monday on his calendar after he was called on in Civil Procedure – he did fine). Of course, my experience in law school was reverse – despite my best efforts to participate and engage in Socratic Method by raising my hand, I was only called on once in class during my entire law school career.
Whether it is being attacked or defended, we need to know what is meant by the term “Socratic Method” in the law school context. Done right, it is not about pit-bull, attack-mode questioning that requires hair-trigger responses. It’s about probing premises and logic, and helping to develop critical thinking skills. Poor old Socrates seems to get slandered a lot and blamed for tactics he never would have employed.
He was a contemporary of yours, I believe?
From wikipedia :
Developing critical thinking skills is one of the goals, but that doesn’t conflict at all with the method of asking challenging questions requiring swift reaction. Real lawyers must be capable of handling pit-bull, attack-mode questioning that requires hair-trigger responses. Otherwise, real clients lose. That’s what distinguishes trial lawyers.
You learned the trick early. The lawprofs always refused to call on the people with their hand raised. It took all the sport out of it.
That whipper-snapper Socrates came along shortly after my retirement.
I think you over-dramatize and/or exaggerate just how often a lawyer needs hair-trigger responses. Some of the “really” worse lawyers I’ve ever seen in a courtroom seemed to think they need to be gunslingers. I’ll take the pensive critical thinkers — who know their subject area in depth — any day for about 99% of what lawyers really do.
Ah, my dear Professor. I believe you may have fallen into the same trap as your buddies from the Academy. Possessing the skills to think on one’s feet and being a “pensive critical thinker” when time allows are not mutually exclusive. But if one lacks the skill to provide a hair-trigger response when it’s needed, then the client will most likely join the ranks of “pensive critical thinkers” with a long stretch of time to consider his lawyer’s deficit.
You seem to equate your narrow specialty with the entire legal profession, Scott. But, even in your specialty, the ability to offer a timely response has far more to do with being well-prepared about the law and the facts, and good at anticipating the behavior of your opponent, than with having withstood some verbal gauntlet in a classroom.
Of course, I am not saying law students should not been subjected to sharp, quick questions, merely that that is far less important than the critical thinking abilities that are far more important and far more difficult to nurture. I concur in your “defense” of the so-called Socratic Method, but write to say the Method has far more important goals than creating gunslingers.
In fairness, I make the qualification in my post that this doesn’t apply to desk jockey’s and their ilk, but rather to trench lawyers, dear Professor. And as I note here, guys like do so love to be analogized to gunslingers. It makes us feel quite macho.
You realize how crazy this sounds to us non-lawyers, right? When my Computer Science professor taught us about Finite State Automata, he did so by explaining what an FSA was, why we’d want to use one, and how to create one.
We didn’t have to listen to random frickin’ students try to explain a subject they didn’t understand—not because the professor was concerned over our feelings, but because it’s a proven teaching method to have the guy who knows stuff explain it to the people who don’t.
This could be one of the reasons why very few people retain computer programmers to defend them against criminal accusations.
Actually, the mystery comes from the fact that law school doesn’t necessarily teach students the law, but rather how to think like a lawyer. Learning the law is relatively easy. Learning to be a lawyer is quite a bit harder. The former without the latter, however, won’t do much good, which is why laypeople reading statutes or decisions tend to misunderstand them, while lawyers tend to misunderstand them only about half the time.
Scott,
One small correction. Although I think that socratic questioning has unfortunate side-effects (among them, an over-emphasis on a particular kind of intelligence), I teach very socratically.
I think we agree that the kind of skills necessary to be a good courtroom lawyer aren’t the same as those necessary to being a good appellate judge (or, for that matter, a transactional lawyer).
In that case, I both stand corrected and applaud your methods. While it may not be necessary for all lawyers to be capable of quick, effective analysis and response, it certainly can’t hurt either.
And as for those glib responders, consider how they would be treated by a judge. There’s a lesson there too, both for the superficial thinker as well as the observers who come to admire them. Fast and cute isn’t enough to be persuasive.
One of the things I was not expecting to read on Scott’s blog:
“But you [law professors] do teach people to be trench lawyers, and [something you do] is a darned good way to do so.”
Alright, you went and got me thinking about this. So much so that I wound up writing a whole blog post about it. [Ed. note: link deleted per rules.]
The Socratic Method done well is a useful learning tool for all lawyers, whether “in the trenches” or in the boardroom. It forces students to re-think their initial opinions and come to a deeper understanding of the material. It also has the added benefit of making you think on your feet.
Since one of the most important traits that many attorneys must possess is the ability to look at things from different angles and re-evaluate ideas, the Socratic Method can be invaluable. It is one thing to teach that “this is what the law is” but that won’t help students learn to argue for why it should change.
Done poorly though the Socratic Method is a terrible learning tool and only confuses students more and terrifies them. I still remember walking out of a class hoping that the student called on that day was right because if she wasn’t then none of knew what the law actually was.
When we speak of the Socratic Method, or any other method for that matter, we assume that it’s properly done since any method done poorly is, well, poor. Be cautious about forming opinions as to what methods worked best for you until you’ve been out of law school a couple of years, Cara, as you have yet to come to realize what you did and did not learn. It took me many years to appreciate some of the things I learned in law school, which at the time seemed silly, wrong, trivial, or inapplicable. Give it some time.
Didn’t I see this exact same comment somewhere else?
Cara posted the exact same comment to the WSJ Law Blog as well. I guess she’s making the rounds?
Poor form.
She’s very young.
Of course in a perfect world we would always assume that anything we talk about is being done properly. But, as some other folks have pointed out, the Socratic Method isn’t always done properly. When it’s not it can be even worse than a simple lecture format. Also, many people don’t realize that the “classic” Socratic Method style from the Paper Chase is not necessarily very good example of it.
I never claimed to have a monopoly on knowledge, but even with only a short time out of law school I can say which professors got across the message that they were aiming for (if not necessarily which anything grander than that). I learned a lot in law school and had by and large wonderful professors, but it doesn’t take a Yale scholar to see when no one in the class can tell Palsgraf from Phlebotomy.
My main point was just that there are benefits to the Socratic method (when done properly, rather than just to embarrass) that benefit all lawyers, not just trial lawyers.
I think the Socratic method helps develop guts – which I guess is a restatement of your thoughts on trench warfare.
Is it just me, or is there less guts in the courtroom than there used to be?
“Guts” is not a quality highly prized by the youth of today. They prefer “easy” and “painless”.
The Socratic method fits some law school classes, but not others. The “thinking on your feet” skill is only a side benefit of its main purpose: developing deep understanding of the policies and principles that underlie the law.
Done well, the Socratic method helps students break through surface glibness to the real explanation for why a rule exists.
This works great in the traditional first-year courses such as Con Law, Property and Torts. It’s a pointless waste of time in more formulaic subjects like Corporate Tax or UCC law.
In the courses where the Socratic method works best, a good professor will have two roles. The first is to figure out the underlying principles that explain most if not all of the caselaw on a given issue. The second is to get the students to learn how to find those principles themselves, overcoming their normal tendency to see only the surface.
This builds lawyers who can make the arguments that build and enhance our jurisprudence, rather than the kind who can only react to it. They’re not surprised by changes in the law, because they know where it’s coming from.
You get trial lawyers who can raise a novel argument for suppression, because they know why it fits, and can argue in real time when the opportunity or need arises.
You get appellate lawyers who can convince judges to strengthen an individual right.
You get judges who do their job well. And you get professors who can pass on these crucial — and rare — abilities of rigorous thought and skillful advocacy.
And even the transactional lawyers who will never see the inside of a courtroom benefit. Rigorous thought, deep understanding and skillful advocacy are necessary for any lawyer if they want to be a good lawyer.
Scott,
Nice post. I agree that when the method is done well, it is highly effective. But I just wanted to add that in my industry (legal book publishing) much talk has been made recently about the adoption of electronic case books in school. Last year, Seattle University School of Law held a roundtable discussion with law professors, lawyers, and technology folks on the future of the electronic casebook. What was interesting about the discussions were the observations being made about the electronic casebook’s disruption of the Langdelian model, and by extension the Soctratic Method. It seems more than possible that the direction of teaching in law school will simply become more “collaborative” (social?).
That’s the word from the cutting edge of legal education; three years and all they will know how to do is sing Kumbaya. Frankly, I have no clue what “collaborative” means in the educational context, but in the zeal to find next season’s hemline height, I fear they will produce a generation of lawyers capable of doing nothing more than whining about how hard it is to be a lawyer and how mean the judges are to them.
The Time To Speak
One of the most underappreciated skills necessary at trial is the objection.
The Time To Speak
One of the most underappreciated skills necessary at trial is the objection.
The Time To Speak (Update)
One of the most underappreciated skills necessary at trial is the objection.