pageok
pageok
pageok
What Does It Mean to "Think Like a Lawyer"? And How Does The Socratic Method Help?:
In his latest post, Ilya offers the following take on how the Socratic Method can help a person "think like a lawyer," and how much it matters:
It is useful for lawyers to be able to think on their feet, answer difficult questions posed in an oral argument, and so on. At the same time, it's important to realize that classroom SM is only vaguely similar to the work of most real-world lawyers. Transactional lawyers rarely confront SM-like situations at all. And even many litigators spend far more time doing research or writing briefs and motions than answering questions at an oral argument. Nonetheless, SM can help hone advocacy skills that many lawyers will find useful.
  I think Ilya and I have a very different sense of what it means to "think like a lawyer." In my view, thinking like a lawyer has little to do with thinking on your feet, answering questions orally, or advocacy skills. Nor does the Socratic Method teach these skills very well.

  Rather, "thinking like a lawyer" means having a brain that focuses on what is legally relevant and that puts aside what is not. Legal thinking is a practical art that relies on a set of principles and relationships, and a person thinks like a lawyer when they master that practical art.

  The purpose of the Socratic Method is to ask students the legally relevant questions (and in some cases, to show why the legally irrelevant questions are legally irrelevant) in order to train them to ask themselves those questions when they read cases and legal materials on their own. Put another way, the method pushes students to internalize a way of thinking: The repeated raising of a specific type of questions in class trains students to ask themselves those questions out of class.

  In my view, the Socratic Method doesn't require a professor to "hide the ball" or preclude some lecturing about doctrine. It can be done that way, but it doesn't have to be. Rather, I think the root of the method is creating an environment in which students in a large class feel sufficiently engaged in the material (often aided by the possibility of being called on) so that they try to answer the professor's questions for themselves. After a while, they can predict where the professor will go; they can ask the professor's questions without the professor. As Phil Areeda wrote:
The student sees that he could have asked himself those questions before class; that the kinds of questions the instructor asked can be self-posed after class. The internalization of that questioning process is not an illusion. It is the essence of legal reasoning and the prize [of the Socratic Method].
Phillip E. Areeda, The Socratic Method (SM) (Lecture at Puget Sound, 1/31/90), 109 Harv. L. Rev. 911 (1996).
Dissenter:
Well put, professor. If there's anything to be learned from 1L torts, it's how to weed out what matters from what doesn't. Getting grilled has a way of forcing you to figure out that distinction quickly.

I would say the other benefit of the Socratic method is that it teaches you how to answer precisely the question that is asked - no more, no less.
8.22.2008 1:09pm
Redman:
I am reminded of what an 'old' lawyer told me when I first started in practice. "Son, if a man has never been in a courtroom, he's not a lawyer; he's just someone with a law degree."
8.22.2008 1:10pm
randomvisitor (mail):
Isn't there also an implicit value-communication going on? Many things in my field are also a bit "odd and outdated", but are retained because of how they communicate and celebrate important values -- openness, accountability, and so forth.

For example, there is little need for questions in many lecture classes in my field; one could easily relegate them to a specified Q&A period -- or even delegate the answering of them to a grad student. But it would be "ideologically" unacceptable to do it. The cadaver dissection in med school may for many doctors be a huge waste relative to the gain (e.g., for the psychologists, say, or the research MDs), but similarly it is retained.

The Socratic Method might not be the most efficient way to teach a particular skill; it may even requiring learning a skill that's not directly used in practice. But perhaps it is a way to pass on values of a profession. (If I had to guess, I'd say it was a "democratized authority", something the legal profession is wise to teach and promote.)
8.22.2008 1:12pm
A.S.:
IMO, this idea of "thinking like a lawyer" is complete bunk. There is such thing as "thinking like a lawyer" that is different than "thinking like a doctor" or "thinking like a plumber".

A doctor needs to analyze the facts and focus on what is medically relevant and that put aside what is not.

A plumber needs to analyze the facts and focus on what is relevant to plumbing and put aside what is not.

Doctors and plumbers also focus on certain types of principles and relationships - just differents sets of them than lawyers do.

This idea that lawyers think in a way that non-lawyers don't is just something we lawyers made up to make us feel special.
8.22.2008 1:21pm
loki13 (mail):
OK,

Thank you for this post. You placed into words the concept I was trying to get too in my too-frequent posts on the subject. I think there is a difference between telling students what the case is "about" (the lecture) and having students go through the process of looking at a case/legal concept in a new way themselves (the SM aka "thinking like a lawyer").

This, of course, is why you have the blog. BTW, I enjoyed the casebook you co-edit in crimpro, although I disagree with your stance on 4th am. 3d party standing.
8.22.2008 1:23pm
loki13 (mail):
A.S.,

You're wrong. To give just one example of thinking like a lawyer:

Given a set of facts, law, and policy, can you craft an argument for both A and not A?

This is not to denigrate other professions; they acquire other the skills they need and thought processes they need as well. But as any other spouse of a person who has gone through law school can tell you, it does change the way you think.*

*And in more than just using "dispositive" during a dinner conversation. Or pointing out all the errors in the legal movies/television shows you're watching. *grin*
8.22.2008 1:29pm
A.S.:
Given a set of facts, law, and policy, can you craft an argument for both A and not A?

Given this set of symptoms and medical knowledge, can a doctor give an argument for a diagnosis of disease A and for not-A?
8.22.2008 1:36pm
Jon Roland (mail) (www):
Strictly speaking, the "Socratic method" sometimes used in law classes differs in important ways from the method practiced by Socrates, as reported by Plato and Xenophon. Socrates was not examining practical knowledge, but seeking to clarify understanding of ideas thought to be innate.

As for learning how to "think like a lawyer", I'm afraid there is such a thing and it doesn't speak well of the legal profession. It is about learning how to do, say, and even think, in ways that win cases for clients in court, regardless of the sometmes negative impacts on truth or justice. It is the thinking of advocates -- salesmen -- not the thinking of moral philosophers, legal historians, or scientists. It leads to the pernicious doctrine of "legal realism", that the law is whatever a judge says it is, rather than what is authorized by a Constitution.

Before a law student learns to "think like a lawyer" he should to think like a moral, scientifically trained, logical human being, so that he can at least put his advocacy into a professional box that doesn't intrude into other areas of his life and the life of others.
8.22.2008 1:41pm
loki13 (mail):
A.S.

Yeah, that's real helpful.

Dr.: Well, you have pancreatic cancer, and you're going to die in 2 months, AND you're also fine.

Patient: Well, what is it?

Dr.: Both! I've been trained not to separate the useless diagnoses from the correct ones, but to see the shades of grey and argue based on what your position is. Do you pancreatic cancer, or do you want to be fine?
8.22.2008 1:43pm
hattio1:
The socractic method, done well, works great. The socractic method, done poorly, is a complete waste of time. The problem with the socractic method is teachers who are not very good at it at all (and I'm talking teachers with years of experience) still feel like they have to use it.

As to thinking like a lawyer, there is definitely a method to thinking like a lawyer. AS asks the wrong question regarding doctors. The question isn't whether a doctor could make a case for disease A and disease not-A. The question is could he make the case for disease A and health when discussing the cadaver in front of him. THAT's thinking like a lawyer.
8.22.2008 1:45pm
loki13 (mail):
Jon,

I agree with what you wrote. You need to have private normative beliefs, and you need to keep those. Try and work in a field where those normative beliefs rarely conflict with your professional obligation to advocate for your client.
8.22.2008 1:46pm
A.S.:
Loki13 - You don't watch much House, do you? That exact scenario happens every other episode. :-)

Seriously, though - you don't think that doctors are confronted by situations in which, based on the available symptoms, they can make an argument for a diagnosis of disease A and another argument for a diagnosis of disease B? What they do in those situations differs from a lawyer, of course - you usually don't have one set of doctors trying hard to prove A and a separate set of doctors trying hard to prove B, with a third doctor making the decision between A and B. Again, other than a House episode.

Nevertheless, just like lawyers can usually figure out what the better legal argument is between A and B, doctors can usually figure out what the better diagnosis is between A and B.

(And let's not even get into plumbers - where's my leak coming from? Could be the drain, could be the supply, could be a hole in the caulking, etc., etc.)

Application of a set of specialized knowledge to the facts at hand is not anything special.
8.22.2008 2:00pm
Golda:
"Socrates was not examining practical knowledge, but seeking to clarify understanding of ideas thought to be innate."

But isn't there a philosophy of the common law that it is innate to society -- thus judges "discover what the law is" by analogy to precedent. Certainly, there is a doctrine of rights that are innate (We hold these truths to be self-evident. . .).

As for your critique of thinking like lawyers, it is the lawyers humility that teaches that truth and justice are not determined by her, but that strong adversarial advocacy on both sides of an issue can get closer to truth and justice than we could hope to as imperfect individuals. People, after all, do see things differently.
8.22.2008 2:07pm
MJG:
I think Orin has it about right. There is something to this whole process. Posner has observed that there must be something about law school that works, or something intrinsic to the law itself, because when people who are not lawyers talk about the law they just can't ever get it right, even if the non-lawyer is exceptionally brilliant and the lawyer is, shall we say, not. I really think this goes back to law school and it helps define what "thinking like a lawyer" is, even if it has a bit of a je ne sais qua? quality.

Also, Ilya doesn't know what he's talking about here:


Transactional lawyers rarely confront SM-like situations at all.


My first of transactional practice I was working on a proposed joint venture. After working on the ramifications and the language, the senior partner began to ask me a series of hypotheticals and questions as an exercise to think through the worst case scenarios of what we were working with to see where liability would rest. Although not always so explicit, transactional lawyers tend to spend as much or more time dealing with such hypotheticals than litigators because, quite often, their job is to think of and predict "next cases" to see if the structure and language they have created will hold up over time. Indeed, this is a major reason why business people - who know the price terms, the immediate business effects, and how much money they want to split - hire lawyers: to think about what happens if it doesn't work, and specifically if it doesn't work in varying ways.
8.22.2008 2:13pm
MJG:
Also I'm not sure what the purpose of Jon Roland's comment is:


Strictly speaking, the "Socratic method" sometimes used in law classes differs in important ways from the method practiced by Socrates, as reported by Plato and Xenophon. Socrates was not examining practical knowledge, but seeking to clarify understanding of ideas thought to be innate.


Yes, the term is a bit of a misnomer. If you read those dialogues, and you put the law professor on par with Socrates, you'd think the proper response to your law professor would typically just be "Yes, Socrates," since generally Socrates just explicates some comment for 150 words, waits for the "Yes, Socrates, that appears correct to me," before launching into the next part of the argument. Law school questioning bears little direct resemblance to this, but acting like the fact that the "Socratic method" improperly parallels what Socrates and Xenophon were doing misunderstands the purpose and ignores 100 years of law school classroom development.
8.22.2008 2:18pm
Erick Rhoan (mail) (www):
What does it mean to think like a lawyer?
I think that it means knowing the black letter law and being able to apply two sides of an argument in any factual situation. Example: Was there a battery? Answer: Here there was a battery because [fact justification]. On the other hand, they will argue there was no battery because [fact justification]. Coupled with that is the ability to have a sensitivity to the facts and being able to pull issues out of those facts.

Does the socratic method help? To me, it helps to a point; scaring the students into answering doesn't seem like the best way to teach but I found in my class that I'm constantly engaged in the discussion, and I hang on every word of the professor and student, more so out of fear. If that's how judges act in the courtroom then I must get used to it I guess. And fear is temporary; preparation is everything.
8.22.2008 2:18pm
Golda:
Also thinking like a lawyer: By battery, I know you did not mean a cell that stores electricity but somthing else entirely, invoving a complex human interaction.
8.22.2008 2:24pm
Aultimer:
MJG is dead on - only appellate lawyers do more hypothesizing than transactional types. Well, good ones.

That said, using the socratic method for something like Con Law is sadism and little else - maybe it aids the student in becoming comfortable with ambiguity (which is a critical skill), but it isn't an effective pedagogical approach where there are multiple layers of relevance as described by Prof. K.
8.22.2008 2:35pm
zippypinhead:
The quoted explanation by Phil Areeda is absolutely brilliant:
The student sees that he could have asked himself those questions before class; that the kinds of questions the instructor asked can be self-posed after class. The internalization of that questioning process is not an illusion. It is the essence of legal reasoning and the prize [of the Socratic Method].
And the process he describes is one a practicing attorney does every single day of his or her career (not just litigators, but as pointed out by some of the comments, apparently also transactional lawyers). It's the essence of preparing, whether analyzing the merits of a potential cause of action, planning a deposition or examination, evaluating the impact of adverse precedent, anticipating post-transaction contingencies, or whatever.

But it DOES drive my wife nuts when she faces a whole series of questions about contingent outcomes when, for example, she suggests spending Saturday shopping for new living room draperies. For some reason the line "but honey, I can't help myself - I'm just thinking like a lawyer" doesn't seem to help much. ;~)
8.22.2008 2:44pm
Tony Tutins (mail):

There is [no] such thing as "thinking like a lawyer" that is different than "thinking like a doctor" or "thinking like a plumber".

Arguing both sides of any issue, marshalling as many arguments for each side as possible, analyzing without using math, are three main differences between lawyers and other folks.
8.22.2008 2:46pm
loki13 (mail):
A.S.

Actually, I love House. More for the drama than the medicine. But I think you're missing my point with the doctor analogy. While doctors may argue about the correct diagnosis, there is agreement that there *is* a correct diagnosis. They just have to find it.

This is different than the classic lawyer answer of "it depends." (Depends on what? Who your client is. Heh.)

For a lawyer, the key is to get to a pre-determined result given the facts, law, and policy. This is why many literal-minded folks (scientists, engineers) have trouble with the law; while there is the "black-letter" law, there is rarely a right answer. Remember back to the first time you had an exam when you had to argue against a position you either normatively believed in or went against the "black-letter" law? That's thinking like a lawyer.
8.22.2008 3:21pm
LM (mail):

Rather, "thinking like a lawyer" means having a brain that focuses on what is legally relevant and that puts aside what is not.

I agree but, and I hesitate to say this, I also largely agree with A.S. Distinguishing what's legally relevant from what's not, like crafting an argument from both sides, is pretty much just the lawyer's version of thinking actively and carefully. The Socratic method may be well-suited to the adversarial advocacy we all do (transactional lawyers included), but the exercise it demands consists essentially of aggressively challenging our assumptions and conclusions, i.e., the basics of any rigorous analysis. Some law students and lawyers may mistake such thinking for "thinking like a lawyer," especially if they skated until law school on memorization and mental cutting and pasting. And there are people like Orin and Ilya who have probably always taken rigorous thinking so much for granted that they consider the relevant questions only the lawyer, law-school and Socratic method-specific ones. Nonetheless, I'd argue that, at its root, "thinking like a lawyer" is just "thinking" properly.

If some doctors, plumbers and even politicians do indeed manage without such thinking skills, they're not the ones I want to hire.
8.22.2008 4:37pm
Helene Edwards (mail):
Here's the best-ever description of what lawyers actually do; David Bazelon in "Client Against Lawyers." http://harpers.org/archive/1967/09/0002830
8.22.2008 4:56pm
Maistre (mail):
That Areeda quote isn't convincing at all. All it says is that SM is a useful tool for *motivating* students (by exposing their ignorance, which supposedly gets them to try harder). But there are many other ways to motivate students. Quite possibly SM *de*motivates many students by demoralizing them.
8.22.2008 5:28pm
Bruce Hayden (mail) (www):
Law school does (mostly) teach law students to think like lawyers, and lawyers (mostly) think differently than most others. I didn't see it happen with myself, but that may have been because I was the one going through it, or may have been because my father and his friends were lawyers. I do think though that my thinking like a lawyer was a major factor in my divorce from my black and white seeing former spouse.

In any case, I drive my non-lawyer friends and family crazy by not being able to commit. They ask what they see as a yes/no question, and I refuse to answer either way without (often a lot) more clarification. It doesn't seem to bother the lawyers in my family and friends though.

Where did I really learn this absurd thinking pattern? It was cumulative, but the biggest thing was probably a Torts prof who would push one way, then when you went that way, would push the other way.

I mentioned yesterday that the high point of my legal education was surviving this and holding my own for five minutes. The low point was when a bunch of the students in my Con law class protested that the prof had asked some pro-choicers to take the opposite side of Roe v. Wade. Some how they felt that it was ok for a Torts prof to use the Socratic method, but not the Con law prof, due to the sensitive subject matter. But that is exactly when it is the most important - when your pre-conceived notions or positions push you in one direction, closing your eyes to the other side's arguments. (And this is why profs so often use horrific facts to side track the unwary).
8.22.2008 6:53pm
Bruce Hayden (mail) (www):
I think it a mistake to think that the thought patterns that constitute thinking like a lawyer are just one thing. Rather, I would suggest that there are a number of interrelated attributes:

- Seeing and being able to argue both sides of most issues
- Seeing a lot of gray, and little black and white
- Seeing and anticipating complications that may arise. For me, this is trying to anticipate Murphy's Law (and coming from computer science, I found easier than many)
- Discerning what is relevant and important. This applies to both real situations, as well as case law.
- Putting this all in a legal framework, including rules of evidence, statutes, and common law.
- Doing all of the above dispassionately and under pressure.

I am sure that I missed some, but I think this is a start.
8.22.2008 7:02pm
T.R.M.:
"The Socratic method may be well-suited to the adversarial advocacy we all do (transactional lawyers included), but the exercise it demands consists essentially of aggressively challenging our assumptions and conclusions, i.e., the basics of any rigorous analysis."

But this is only the start of thinking like a lawyer, among other things the purpose of the lawyer's analysis is not to convince himself but others (public logic) and it requires commitment to a system that putting such public logic in contention will lead to the just bargain, or the true verdict.
8.22.2008 7:31pm
Elliot123 (mail):
What does it mean to think like a lawyer? That's easy. Think in terms of billable hours.
8.23.2008 1:56pm