f/k/a archives . . . real opinions & real haiku

September 30, 2007

more lawyers should “think like lawyers”

Filed under: Haiku or Senryu,lawyer news or ethics,viewpoint — David Giacalone @ 6:31 pm

Earlier this week, at Legal Blog Watch, Carolyn Elefant asked “Have You Learned to Think Like a Lawyer?.” She pointed to an upcoming law journal article with the title “Thinking Like a Lawyer: The Heuristics of Case Synthesis,” 40 Texas Tech Law Review (forthcoming 2007; 53-pp pdf.; abstract), by Jane K Gionfriddo, Boston College Law School Associate Professor of Legal Reasoning, Research & Writing. (And see, Law Librarian Blog & Future Lawyer) After noting that the current trend seems to be tilting the law school curriculum away from theoretical studies in favor of teaching “more practical skills,” Carolyn poses some important questions:

“Do you think law school teaches students to think too much like lawyers — or not enough? And is thinking like a lawyer a skill that some are born with — or one that can only be acquired through training and practice?”

For my money, there is no more practical skill than truly learning how to “think like a lawyer.” For me, thinking like a lawyer is a good and necessary thing for persons holding themselves out as lawyers, judges, and law professors. Indeed, far too many so-called legally-trained professionals do far too little thinking like a lawyer — as opposed to their sounding like they think a lawyer should, by employing various verbal tricks and affectations.

At a minimum, “thinking like a lawyer” should mean being able to:

  • recognize both the legal issues raised by a fact situation [“issue-spotting”] and the additional facts needed to offer a competent legal opinion on the matter
  • ascertain or discern which laws and judicial opinions are relevant in analyzing and solving a particular problem; and, as Prof. Gionfriddo explains, be able to properly “synthesize a series of cases.”
    • Also, know when you need to refer a matter to a lawyer with the expertise required to efficiently and competently handle a proffered or encountered matter
  • understand when and why an analogy is strong or weak
  • know when a factual distinction does or doesn’t make a legal difference, and be able to articulate why
  • recognize when factors other than the apparently applicable black-letter law or judicial precedent (e.g., equities, history, economics, social or political policy, etc.) need to be considered in deciding upon a course of action, giving advice to a client, or addressing a court, legislature or regulator.

If you closely listen to, or read, the discourse and legal argument of most law school graduates, it’s very difficult to conclude that they have had too much instruction in thinking like a lawyer or are using those skills excessively. Some readers might think this assertion is strange, coming from a haiku poet who is a “recovering” ex-lawyer, and who spent the last half of his legal career advocating the use of mediation over litigation. But, long-time visitors to this website shouldn’t be surprised. As I wrote in 2005, in “differences we can’t see,” when praising Adam Cohen’s New York Times op/ed column, “An SAT without analogies is like: (A) a confused citizenry,” March 13, 2005):

The most maddening and sad intellectual weakness I have seen in two years spent within the blogosphere has been the inability of so many young lawyers and law students to know when distinctions make a difference, and whether analogies are weak or strong. Thus, Adam Cohen’s op/ed piece in today’s NYT should be required reading for all educators and all who wish to fulfill the role of lawyer, pundit, politician or citizen competently.

Similarly, in “analogically correct” (April 12, 2005), I hailed publication of Harvard Law Professor Lloyd L. Weinreb‘s 2005 book Legal Reason: The Use of Analogy in Legal Argument (Cambridge Press 2005). In the face of arguments from heavy-hitters like Richard Posner, Edward Levi and Cass Sunstein against the use of analogical reasoning by judges and lawyers, Prof. Weinreb wrote Legal Reason to explain that the use of analogical reasoning is dictated by the nature of law, which requires the application of rules to particular facts. I was pleased to say that the book “helps the reader learn how to separate the analogical chaff from the whole-grain variety (my lame comparison, not his).”

Cohen notes: “Intentionally misleading comparisons are becoming the dominant mode of public discourse. The ability to tell true analogies from false ones has never been more important.” I’m afraid, however, that either of two different-but-disturbing things are going on when we see misleading comparisons and faulty reasoning by lawyers and law students. They are:

  1. unaware of how poorly they reason and/or express their argument and reasoning; or
  2. they are in fact intentionally using misleading comparisons, because they believe that “thinking like a lawyer”(especially in our adversarial system) gives them license — or even an obligation — to do so

I’m afraid that every law student and graduate has faced the situation humorously mentioned by Future Lawyer Rick Georges: being chastised by a friend or loved one (and especially a spouse, significant other, or other romantic interest) for “thinking like a lawyer” in situations where doing so is purportedly inappropriate, irrelevant, or just plain annoying. Of course, the critics are often merely miffed over having their own faulty logic, missing elements, or weak arguments pointed out by their legally-trained companion. Admittedly, at times, the legal professional is indeed inserting an argumentative attitude into an inappropriate situation. But, more often, the problem is that the lay public is equating or mistaking “thinking like a lawyer” with thinking like a mediocre or incompetent lawyer, or a socially-or-morally-challenged one — one who is not aware that thinking like a lawyer does not mean forgetting or eschewing other human wisdom and virtues.

not grasping
the autumn evening…
the scarecrow

looks almost
like frogs hopping!
rain on the grass

………………………………… by Kobayashi Issa, translated by David G. Lanoue

A couple years ago, I ran across two thought-provoking law review articles with very different perspectives on legal thinking. The first isThinking Like A Lawyer: Second Thoughts,” 47 Mercer L. Rev. 511, by Univ. of West Virginia Law Prof. James R. Elkins. I’ve often referred to Jim Elkins at this weblog, because he is the lawyer-poetry maven behind Strangers to Us All, the website devoted to lawyers who write poetry, and editor of Legal Studies Forum, which has produced several volumes filled with lawyer poetry (including my own) (here, here and there). In his article, Jim Elkins says that “Law teachers advance ‘legal thinking’ by teaching their students that everyday thinking is inadequate and that images of law held by outsiders are naivé.” He warns:

Law teachers who seek to teach their students to “think like lawyers” should be honest with their students: legal thinking may not be a distinctive form of thought, and to the extent that it is a distinctive way of thinking, it may be a dangerous one. Law teachers who teach “legal thinking” should warn their students of the known hazards of legalistic thinking. When law teachers fail to warn their students about the questionable nature, limits, and dangers of “legal thinking,” they lead them astray.

The second article was written in response to Jim Elkins’s; it is “Uneasy Burden: What it Really Means to Learn to Think like a Lawyer,” 47 Mercer L. Rev. 543, by Peter R. Teachout, Professor of Law, Vermont Law School (Note: Prof. Teachout’s wife, Vermont Superior Court Judge Mary Teachout, was a favorite friend of mine three decades ago in law school, but I have never met Peter.) Prof. Teachout starts his article with two quotes:

If you think you can think about a thing that is hitched to other things without thinking about the things that it is hitched to, then you have [learned to think like a lawyer].

………………. Thomas Reed Powell

It imposes the uneasy burden and occasional joy of a complex double vision, a fluid, ambivalent response to men and events which represents, at its finest, a profoundly civilized adjustment to the cost of being human in this modern world.

………………………. Ralph Ellison

To my surprise, this aspiring haiku poet found himself nodding in agreement when reading Peter Teachout’s rebuttal to the Elkins article. Here are some excerpts that capture the essence of his argument, with which I agree, and which (along with Jim’s) deserves a full reading [emphases added]:

“Reduced to its essence, Elkins’ indictment of traditional legal education rests upon two core, Pirsig inspired [from Zen and the Art of Motorcycle Maintenance], claims. First, that legal education is morally incapacitating because it teaches us to keep radically separate that which is moral from that which is legal and, furthermore, to be concerned only with that which is legal. Second, that legal education is destructive of the self because it teaches us to deny every aspect of our response to experience except that which is purely and technically legal. Learning to think like a lawyer, under this view, is doubly disabling: not only does it prevent us from seeing and dealing intelligently with moral issues, it renders us incapable of responding to experience as human beings. But are these claims valid? Are these in fact the necessary consequences of “learning to think like a lawyer”? Is Elkins’ indictment, in short, a fair one?

“My own view, which I elaborate below, is that, carried along by Pirsig’s influence, Elkins ends up getting things exactly backwards. I know that there are radical positivists who insist that law ought to be kept entirely separate from morality, and I also know that there are bad law teachers — there are “Professor Lawsons” out there — and to that extent Elkins has a point. But the mainstream tradition of legal education in this country, it seems to me, has always emphasized the key role played by morality in the development and understanding of the law; it has always taught that we proceed at our hazard if we ignore the close and intimate interrelationship between the two. Indeed, I would go beyond mere rebuttal. Not only is a legal education not morally incapacitating as Elkins claims; if anything, I would argue, it offers those who take it seriously a more complex understanding of the moral dimensions of experience.”

“As Plato’s performance in the Gorgias demonstrates, as does [Justice Robert] Jackson’s performance [as the Chief United States Prosecutor] at Nuremberg, there is no inherent inconsistency between being thoughtful, focused, and self-critical on the one hand, and being poetic and caring and human on the other. Making connections between the imagination and the critical judgment, between the heart and the head, between feeling and thinking, may not always be easy, but that is not to say that such connections cannot be made.

“So the problem in the final analysis is not losing one’s poetic capacity, but finding ways to make connections between what one knows specially as a lawyer and everything else that one knows. This brings us, I think, to the core problem: It is not that the connections cannot be made, it is that they are not always easy to make. Indeed, there often exists a tension between how we see the world as lawyers and how we see it in our other capacities, which means that making connections– certainly, making them in a fresh and original way–often requires a considerable art.”

Do we need more and better “thinking like a lawyer” within the legal profession and at our law schools? If the term is understood the way Peter Teachout describes it, we surely do. [find more excerpts from the Teachout article below the fold, by clicking on the more link] As I said at the beginning of this piece, there is no more practical skill for a lawyer to possess than truly learning how to “think like a lawyer.” It is the core skill, the foundation, upon and around which all the other “practical skills” must be built. It is the skill that truly adds value to a problem presented by a client, and that is most likely to lead to viable, “winning” solutions. So, I may still get a bit annoyed when someone says that I “look like a lawyer.” But, I am proud to agree when I’m told “you think like a lawyer” — although I’m very likely to add, “like a good lawyer.”

[cover detail] Legal Reason: The Use of Analogy in Legal Argument , by Lloyd L. Weinreb (Cambridge Press 2005; cover design James F. Brisson)

p.s. Carolyn Elefant asked “is thinking like a lawyer a skill that some are born with — or one that can only be acquired through training and practice?” As often happens, Carolyn might be a bit more optimistic than I. It seems to me that some people are indeed born, or at least enter law school, already capable of “thinking like a lawyer” reasonably well, and able to improve even more with training and practice; that many of those who do not yet have the skill can, with competent training and diligent practice, become quite good by the time they graduate from law school or soon thereafter; but that there is a not-insignificant number of law students and graduates who apparently will simply never be able to competently think like a lawyer. Bar exams should be aimed at finding and filtering such poor thinkers out of the profession.

scarecrowHaikuN from The Scare Crow: A Collection of Haiku & Senryu (Leroy Kanterman, Ed., Hiroake Sato, translator, Red Moon Press, 1999):

a cricket
lending the scarecrow
a voice

……………………………………… by John Stevenson

seeding time
the farmer dresses the same
as the scarecrow

…………………………………….. by jim kacian

the scarecrow
moving backwards —
autumn rain

…………………………….. by gary hotham scare crow cover

in the west
battling like ancients monks

even the servant
poses like a saint…
new summer robe

………………………………… by Kobayashi Issa, translated by David G. Lanoue


they point out
the differences –
identical twins

……………………………….. by dagosan [March 23, 2005]

two voices that sound alike
make their way…
clouds of blossoms

like the humans
a monkey too
curled up for siesta

my shadow looks
like the Old Man’s!
first winter rain

cursing like sailors
at the plum tree…

autumn wind–
like the teeth of a comb
pilgrims from the north

like people scarecrowHaikuN
an upright scarecrow
can’t be found

like he just now
spotted a star…
croaking frog

in winter wind
they don’t seem like women…
around the fire

night after night
like pillows…
the autumn mountains

………………………………… by Kobayashi Issa, translated by David G. Lanoue

……. ….. Below the fold, you will find additional quotations from Prof. Peter Teachout’s article, including his explanation of the “sentimental fallacy.”


Here are just a few of many passages from the article, “Uneasy Burden: What it Really Means to Learn to Think like a Lawyer,” 47 Mercer L. Rev. 543, by Peter R. Teachout, that I believe help to flesh out the thinking-person’s (and the “feeling person’s”) perspective on just what it should mean to “think like a lawyer”

“Turning to Elkins’ second complaint, his concern with the general dehumanizing impact of an education in the law, my response is much the same. I recognize that making connections between what we know specially as lawyers and everything else we know is not always easy, indeed, that to do it right often requires a certain art; and I also recognize that there will always be some students and practitioners who are not very good at it. I disagree strongly, however, with Elkins’ claim that learning to think like a lawyer somehow requires us to deny important aspects of the self, or to forego self-expression, or otherwise to abandon our basic humanity. A legal education may discourage “fuzzy thinking,” it may come down hard on sentimentalism in all its various other forms, but it does not do the things that Elkins charges it with. Indeed, I would argue that, here again, for those who are willing to take it seriously, an education in the law opens up a whole new range of possibilities for self-expression and self-realization.”

“The starting point of any intelligent effort to come to terms with a legal education, it seems to me, is to recognize that there are tensions between the way we see the world as lawyers and the various other ways we see it. The existence of these tensions need not be viewed as a bad thing, however. Indeed, just the opposite. In a very real sense, the life of the mind in the law is composed of these tensions and the creative pressures they exert.”

“But if mainstream legal education does not teach that law and morality must be kept radically separate, indeed, if it teaches, and always has taught, just the opposite, why then do law students so consistently feel as if they are being asked to make that sort of separation? Why do they feel as if, as a cost of acquiring a legal education, they are being asked to deny important aspects of their selves?
“I am not sure I know the answers to these questions, but I do know that the feelings themselves are real and widely shared. My own view is that the contributing factors are probably much more subtle and *572 complex than those who complain about the dehumanizing impact of law school education are generally prepared to recognize. And one crucial factor that is often overlooked, it seems to me, if the problem is not the education itself, is what the students bring to it.

“The core of the problem, in my view, is the “sentimental fallacy.” The sentimental fallacy is the notion that in undertaking any kind of technical education, one loses one’s capacity for responding to experience in human terms. Thus we all nod knowingly when we hear the story of the student who, before coming to law school, looked out the window and saw a meadow filled with flowers, but, after having undergone a legal education, looked out the same window at the same meadow and could see only restrictive covenants running up and down. We nod knowingly because somewhere along the way we have been taken in by the myth that one cannot acquire a technical education without losing one’s basic humanity.”

“The reason they feel the way they do about their legal education is that legal education is not terribly welcoming to sentimentalism in any form. It constantly insists that we make hard, critical judgments–something that is anathema to the sentimental imagination. So part of the resistance to a legal education, surely, is simply a resistance to giving up one’s former sentimental ways of thinking and talking about experience.

“That resistance is often framed in terms of head versus heart.(74) But the dichotomy itself, it should be apparent, is a false one. The aim of law school is not to replace the heart with the head, or to deny in any other way the instincts of the heart, but simply rather, to borrow from Hooker, to teach the heart how to think.(75) It is to transform the sentimental imagination into a critical one.

“Part of the problem is that, notwithstanding everything that has been said so far, legal education does require a kind of separation of law from morality, of the personal from the professional self, and some students *575 feel deeply uncomfortable with having to make that kind of separation. I am talking about the kind of separation that is required by the Legal Process examination considered above: about the difficulty and importance of drawing a line between those kinds of moral conduct that the law can effectively transform into legal enforceable duties and those kinds that are best left to matters of conscience. It is not that moral considerations falling on one side of the line are relevant and those falling on the other are not. The need for drawing the line arises, rather, from the recognition that there are limitations to what the law can do.”

the ordinary bee
struts like a peacock…
Buddha’s birthday flowers

………………………………… by Kobayashi Issa, translated by David G. Lanoue

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