Starting to "Think Like a Lawyer"

I love the beginning of the new school year. I am aware one is not supposed to admit to enjoying the first year of law school, but I confess to having been sufficiently thrilled by the experience to want to repeat it. I especially enjoy welcoming 1L students and introducing them to the exhilaration of learning a new discipline. Thinking like a lawyer requires an appreciation of logic and evidence; there is no overthinking matters if you wish to be an effective advocate and counselor.

Among the most intimidating notions about law, to nonlawyers, is that law is highly technical, calling for a specialized style of argument. As a teacher, I have always tried to show how "thinking like a lawyer" is the same as, not different than, thinking like a person who values thinking. It merely adds Latin phraseology that should be more useful than impressive.

I offer analogies between legal procedure and everyday life. Civil Procedure is the course within the required curriculum that is reputed to bear the least relation to reality. That isn't so. The similarities are worth pointing out, so students do not lose heart as they ponder obscurities at the outset of their training.

Here are a few examples. (Any Civil Procedure colleague would add, as academics are wont to do because they esteem precision, that these ideas extend beyond Civil Procedure and might not be covered in the basic class.)

Estoppel is displayed at traditional Western weddings. "Speak now or forever hold your peace" – a favorite moment for many in the audience, because of its dramatic potential – comes from the Anglican Book of Common Prayer. It expresses perfectly the concept of estoppel. In a system that is efficient but fair, an individual must be given an opportunity to be heard ("speak now"), though at an appropriate moment, with the proviso that failure to take advantage of the chance means it is permanently forfeited ("or forever hold your peace").

The statute of limitations and res judicata apply to childhood disputes. People who want to press forward with their contentions despite these bars protest that they have lost due to a "technicality."

They might take solace in the more familiar versions of these doctrines. You cannot punch a sibling in the nose for an alleged offense that occurred twenty-five years ago that you failed to mention at the time. If you didn't raise it earlier, it doesn't matter that you might well be in the right. Repose serves a purpose; you are expected to have moved on from old grievances. And you most certainly cannot hit that sibling as retribution, if your complaint was addressed when it arose. Even if you still object to the outcome (e.g., your parents imposed inadequate punishment back in the day), the claim has been resolved. Closure must be definite, or the lack of finality leads to anarchy.

Every sibling or spouse invokes the binding effect of precedent. We do not need an education in common law decision-making. Whatever the ratio decidendi – the principle explaining the result of a case – especially if it disadvantaged you in the past, you're likely to recall it if it advantages you in the present.

You also intuitively dismiss dicta, the extraneous commentary that accompanies an opinion. It is not controlling, because it was not essential.

"Forum shopping," too, is a tactic well known in every household with more than one adult. One parent refuses to allow you to do something, so you try another parent, or you appeal to grandparents, aunts, uncles, and so on in succession, for permission. Even if the rule is uniform (no snacks an hour before dinner), its application likely is not; some adults are more lenient (what constitutes a snack, when dinner is deemed to commence, inattentiveness that leads to an inadvertent exception). Your elders, effective at raising children, will explain that it's frowned upon to look for an authority figure who can be manipulated, and they will establish further protocols to thwart the effort. A clever child likely will persist, because they have more at stake.

Perhaps the most important skill lawyers develop, beyond even distinguishing precedent and interpreting statutes, is "spotting issues." The best lawyers see risk. They are able to anticipate problems and prioritize among them, thus influencing the course of events. This ability is distinct from other competencies.

What makes law wonderful to those who enjoy its intellectual challenges, if exasperating to everyone else, is that law is about much more than rules. A person who knows the rules of law is akin to someone who knows the rules of baseball; they cannot necessarily compete with success. The rules may define the game, but recitation of rules is not the most important aspect of the contest.

My advice to incoming law students, as we begin classes, is to look for how law plays out in ordinary life. It is not usually esoteric, theoretical, or extreme. It embodies at its best how reasonable people have tried to organize the world in a practical manner.

Law is not abstract, but applied.

Photo: creative commons licensed (BY) flickr photo by slgckgc