At the risk of sounding cynical, I'd like to make the following observation. One of the oldest sales tricks in the book is the "Tom Sawyer" tactic. Tom Sawyer, you may recall, convinced his friends to whitewash Aunt Polly's fence for him by convincing them that it was great fun. This was clearly the opposite of what they anticipated- painting a fence is boring and tedious work. Any new parent is familiar with the approach. If you want to get the kid to eat carrots, you tell him that he can only have carrots after he eats his broccoli. If you want her to go to bed, tell her that she can stay up as late as she wants. People naturally resist at being told what to do. Instead, children want to feel like they are making the decision on their own. And of course, this compulsion continues well into adulthood. We don't want to be told what to do; we want to decide for ourselves. Shrewed salespeople will tell the customer that there is another buyer in line for the car or house. The threat of competition can motivate an undecided buyer quickly into making a decision. The "Tom Sawyer" tactic, is in reality, a challenge to the recipent's perception in a given situation.
There is a genre of law school preparation books that also employ this tactic. Anyone who has even casually looked into law school knows how hard it is. But these would-be law school gurus argue that, "the game is rigged;" "professors hide the ball intentionally;" and finally, that "there are secrets, such as 'holy grail' outlines and 'shortcuts' that will give the savvy law student an advantage over the competition." Further, these authors disdain the traditional approach to the study of law. This perspective views hard work in law school as something only for suckers. Some even advise students to get rid of their casebooks, stop "briefing" cases and focus their study on commercial outlines. These books take the opposite tact of traditional, well-thought out law school preparation books, that walk the student through the fundamentals of legal study,legal analysis and legal practice. After all, law school can't be as much work as everyone says it is, right? There must be a "trick" to it. These books purport to offer the trick.
The truth is this. The study and practice of law is a lifelong endeavor. That's why it's called a "practice". In law school, you learn a new way of thinking about things. We call it "thinking like a lawyer". I've written about it in my book, Law School Labyrinth, A Guide to Making the Most of Your Legal Education (Kaplan Publishing, March 31, 2009
)and I've blogged about it extensively here. But the bottom line is that it is a definite skill that must be developed, like any skill. And the development of that skill takes a great deal of work, thought, and introspection. There are no shortcuts. There is no "fast food" version of "thinking like a lawyer." You have to learn to do it much like you learned to walk- one step at a time. You read cases. You brief those cases. You prepare for the Socratic onslaught in class. After class, you think about it some more and you capture all of it in you outline, so that you don't forget it. And the practice of law works the same way. You continually read, research, and dig into the facts and collaborate with your peers, in order to provide the best legal advice and representation possible. This is why Type "A" personalities make such good lawyers. They keep striving for perfection, although they know they will never achieve it. And that's why law school is taught the way it is. It works. Thousands upon thousands of lawyers have trained this way for many, many years.
I've been in law practice for a number of years now and I can see it clearly in hindsight. My intellectual portfolio is the sum total of all of my experiences, good and bad. And if I had attempted to skip those basic steps in the beginning, I am sure that I would not be the lawyer that I am today.
Certainly, the decision as to which approach you follow- law school is hard work; or law school is a rigged game and there are secret shortcuts, if only you will find them- is up to you. But I would strongly suggest that you don't eat the dessert, thinking that it's the entire meal.
Best wishes in your legal studies.
If you're a pre-law or in law school, chances are good that you've heard the phrase, "thinking like a lawyer." I heard it frequently in my first year of law school. I mistakenly viewed it as yet another secret labrinthian code, a "secret handshake" if you will, of law school. I thought that upon graduation, someone would hand me a sealed envelop, along with my diploma, and say "Read this grasshopper, and you will finally learn what it means to 'think like a lawyer.'"
The truth is, there is no real mystery to it at all. "Thinking like a lawyer" means to think like a lawyer thinks. "Circular proposition", you philosophy/ logic majors may declare. Let me explain. As with everything law school, I assumed that everything; every assertion, every argument, every point made had to logically equate. After all, we learn early in law school about precedent and the legitimacy of the law. The law has to be logical and make sense, in order for it to maintain its legitimacy. So, I assumed that the definition of "thinking like a lawyer" had to be composed of specific concepts, as legitimized by the actions of the universe of lawyers.
But as any Trekkie knows, as logical as he was, things simply didn't always add up for Mr. Spock. This is because different people have different perspectives. And those perspectives cause each of us to think differently about the same things.
And this is why I landed on the definition that I did for the concept of "thinking like a lawyer." If you want to know what it means, you have to know how lawyers think.
I've been in practice for a while now, and have worked with many lawyers. I have known many law students as well. And I frequently see characteristics in some law students that lead me to believe that they will become great lawyers one day. This is not because I believe that one day, they will unlock a secret, ancient book that will yield the secrets of the ages about the practice of law to them. It's because they are smart, hardworking, passionate and rational human beings. And these traits will enable them to do the things that successful lawyers do. Successful lawyers work hard for their clients. Successful lawyers are rational and reasonable. Successful lawyers care about their client's issues a great deal. Successful lawyers look for every opportunity to find advantage for their clients.
Certainly, good lawyering means relying on facts and effectively applying the law to those facts. A lot of law students master this piece early in law school and think they've mastered the legal reasoning process. And perhaps they have. But I would argue that a computer program can do the same thing. Real mastery includes legal reasoning, but it also means a great deal more. And it's the "more" part that leads to true knowledge of what "thinking like a lawyer" means.
And the good news, dear law student, is that you are probably well along the way to learning to "think like a lawyer." Chances are, you are already pretty smart (you got into law school, didn't you?). You probably already know what hard work means. And you are probably passionate about any number of issues.
So, my message to you is to think less about the mechanics of the lawyering process and allow yourself to become a great lawyer. Use your God-given talents and abilities for the greater good. Become zealous advocates for your clients and learn to give them the very best possible advice.
You can do this.
After Christmas break my first year of law school, I overheard classmates commiserating about family members that had seemingly become less intelligent. "I couldn't even have an intelligent discussion," one classmate complained. "Yeah, it's like everyone has suddenly become stupid," laughed the other.
It's true: once you've been through the law school forging process, it's easy to get frustrated with lay people. This is because you spend three years in law school learning to read intensely and with precision, supporting every assertion and assumption you make with facts, and analyzing problems with tight logic. As any law student knows, jumping to a conclusion (also known as "conclusory" thinking) is the kiss of death to anyone engaged in legal argument.
I was in business for a number of years before law school. Business is largely about making stuff (either tangible or intangible) and selling it. Making stuff requires precision; selling stuff requires unrestrained creativity. Businesspeople, especially those on the front end (the sellers) have to be creative and have a "I'll knock down any wall" attitude. At the same time, those on the back end (those making and accounting for the stuff) have to be able to quantify and document the business operation.
Lawyers in business are charged with essentially two tasks: helping the business manage risk and protecting the rights of the business. We do this by identifying risks, documenting agreements, and advising businesspeople on both. One of the most important skills required in these tasks is the ability to anticipate potential outcomes. We learn this skill in law school with what I call "On the one hand" thinking.
"On the one hand" thinking means objectively identifying both sides of an argument. And it means identifying the various potential outcomes in any given situation. Law students everywhere learn to think in this way. When asked about the potential outcome of a sales dispute, a good law student might approach it this way. "On the one hand" they might argue, "the UCC requires all contracts for the sale of goods to be in writing." And they counter, "But on the other hand, the jurisdiction in which these facts occurred may not have adopted the UCC". And so, the logical answer to the question turns upon the facts.
Conclusory thinking, on the other hand (I guess I intended this pun) would assume that the UCC applies and simply answer, "They breached the contract." That student made a bad assumption and jumped to a conclusion. And as any law student knows, conclusory thinking is a guaranteed "C" or even "D" on an exam. So, law students quickly learn to identify both sides of an issue, support their analyses with facts and assume nothing.
People who haven't been through the law school crucible may or may not naturally think in this way. Most people do not take the time to identify or even understand the assumptions imbedded within their analysis. In some cases, their assumptions turn out to be correct, and their conclusion is correct. In other cases, they make bad assumptions, leading to bad conclusions.
And this is why to new law students, everyone suddenly becomes "stupid". Law students (and some lawyers) want everyone else to identify assumptions and think logically. But in the real world, everything isn't always logical. And engaging someone who doesn't "think like a lawyer" in a debate about something can lead to frustration.
If you've been through law school, here's the good news. You probably have learned to think in an extremely logical way. But the bad news is the world around you may not. So here's the moral to the story. Seek first to understand, and then be understood. Hone your listening skills and endeavor to understand where others are coming from. Avoid being argumentative. Chances are, you are right. But that doesn't mean you have to prove to others that they are wrong.
Learn to be patient and compassionate. A lot of people don't know what they don't know. Don't make it your mission to educate them. You'll last longer in your career and make a lot less enemies.
At the same time, be true to yourself and your profession. Offer candid and high-quality advice. Never stop striving to tighten up your analysis, based upon the best legal research and intense scrutiny of the facts. Be the best lawyer you can be. But always remember that what you are providing is advice. It's up to the client to decide to take the advice. And clients don't always "think like a lawyer".
I wish you much success in your legal career.