How to Think Like a Lawyer

Monday, June 9th 2008 by Shanel Yang         Email this article to a friend

Photo by Creator Apps

“You come in here with a skull full of mush, and you leave thinking like a lawyer!” Thus said the scary fictional Contracts Law professor at Harvard Law School, Charles W. Kingsfield, Jr., to his students on their very first day in his class. Here’s the full quote:

“In my classroom there is always another question—another question to follow your answer. Yes, you’re on a treadmill. My little questions spin the tumblers of your mind. You’re on an operating table. My little questions are the fingers probing your brain.

“We do brain surgery here. You teach yourselves the law. But, I train your mind. You come in here with a skull full of mush and you leave thinking like a lawyer.”

Ah, memories. I first saw this movie, The Paper Chase, around 1989, when I was excited about going to law school. I should have been scared. But, I wasn’t.

On the contrary, I was intrigued about how to think like a lawyer. I was even thrilled that I’d be learning how to do it from the great minds that teach at the UCLA School of Law. But, what I didn’t realize is that you can’t fill an already full cup; and, my mental cup was full to the brim. I had filled it with the skills that helped me succeed in college. So, I was not about to empty all of that to blindly attempt some new method of learning—especially when no one taught me how—or even what—that was. The old method was rote memorization of all key facts presented in textbooks and classrooms followed by regurgitation of same on term papers and exams. However, that is definitely NOT how to think like a lawyer.

If you’re thinking about going to law school in the near future, or if you just want to know how to think like a lawyer, this is how to do it, in a nutshell.

HOW TO THINK LIKE A LAWYER

1. You Really Do Have to Teach Yourself the “Law.” That’s a given. Kingsfield was not joking when he said that to his class. That was mistake No. 1 for me in law school. And, I’m pretty sure I wasn’t the only one confused about this concept. After each lecture, we walked out with puzzled looks on our faces, compared notes, and asked each other, “What was the point of that lecture?” There were always more questions than answers. I naively believed that this was just some sort of introduction to the subject and that the answers were forthcoming.

They never came. At least not in the classroom. What I didn’t catch on to until it was almost too late was that the answers were in the voluminous, ancient looking casebooks, in which we had to read literally hundreds of pages each night in preparation for the next day’s classes. It was the hardest of those cases that we discussed in class, invariably ending up with no real answers to any of the tough questions the professors posed and then proceeded to probe our minds with.

Tip for Law Students: You only have to know the basic rules and principles of each area of law that you study. It’s impossible and even undesirable to memorize all the case law. For one thing, they are different for each state. For another, even within a state, there are usually different rules for different counties, cities, and, sometimes, even, courtrooms! Most importantly, laws are constantly changing, but the basic rules and principles tend to stay the same. After that, everything is relative, based on the endless permutation of facts that professors and real life cases seem to throw our way. But, all you need to know about those are the two or three major ways that courts tend to treat such permutations. That part is pure art. Sort of like a book report: Whether you liked the book or not is immaterial (how you decide the outcome of a hypothetical case); it’s your ability to prove to the teacher that you actually read the book (know the general rules that apply to that hypothetical case) and how well you support your final opinions about the book (your legal, logical analysis, weaving in some of the principles and policies discussed during 15 weeks of meandering class discussions) that decides the grade.

Tips for Everyone Else: The way to apply this skill to everyday life, if you want to think like a lawyer (whether you are one or not), is to always have a basic understanding of everything that is important to you. Whatever those things are (your occupation, relationships, religion, hobbies, etc.), you have to at least know your core “rules” or “principles” for each of them before you can efficiently and logically handle new developments in any of them. So, develop a clear set of rules to live, work, and play by. You can always change them later if you feel the need. But, you at least should have your foundational beliefs in place at all times.

2. Always Question Answers to Important Questions. I’m not recommending you openly criticize anyone’s answers to their face. I mean think critically about those answers to yourself. Don’t blindly accept answers to any important questions—not even your own. What are important questions? Here are a few: What is the meaning of life, my purpose in it, and how best should I live it?; What type of person should I seek in a life partner?; and all the other serious life questions that people tend to ask themselves in their diaries or journals.

This constant turning of the problem in our minds and looking for weaknesses and strengths, consistencies and inconsistencies, is the beginning of how to think like a lawyer. Once you have gathered the basic “rules” and “principles” from Step No. 1, above, question everything. Everything that is important to you. For example, let’s consider career choice. Whether you think you want to be a doctor, lawyer, architect, executive, or millionaire entrepreneur, really ask yourself why. (I chose these because most people think they’re glamorous careers.) Do you even know what they do all day long? Because if you’re basing your understanding on what it is they do, day in and day out, on movies and TV—like most people do—then you will surely be disappointed. Actually, disappointment is too mild to describe the level of frustration, sense of betrayal, and bitter regret you will experience all the days of your working life if you don’t find out whether that job is right for you.

Tip for Law Students: Don’t overdo it. I know professors spend weeks on all the possible different ways the laws could be changed to better serve this cause or that policy. But, the bottom line is you have to know the black letter law as it exists today—not what it was 100 years ago and not what it might be next week. At least 75% to 95% of your exam grades will be based on your ability to quickly recognize which laws are relevant to the issues presented and how to logically apply only those few laws (out of the 1000s you memorized for each class) to only the facts presented (and not to the 100s of 1000s of facts you studied).

The professors really do assume you diligently studied and memorized all the laws. That’s the baseline. If you didn’t do that, you’re in real trouble and probably won’t survive the first year of law school. But, most law students do study all the laws and even all the facts they think are important, so why is the typical curve after the first semester finals 10% A’s, 40% B’s, and 40% C’s, with the rest basically failing? The answer is simple. The tests are usually only 3 hours long with an hour for each essay question, even though the class is usually 15 weeks long. Quality, not quantity, of information is the secret to law school tests. You must become a surgeon with your knowledge and only use the best instruments for each operation. If one of the essay questions is about a certain type of breach of contract, don’t waste any of your precious hour allotted for that question discussing contract formation (even if your professor spent weeks on that subject in class)!

I think the confusion arises because you are taught to “think like a lawyer” in class, with the infamous Socratic method, but, then, are still expected to take the test, more or less, with very little creativity. Ninety percent of classroom discussions don’t matter at test time. But, don’t be discouraged. All that discussion was not wasted. It was training for you to use when you actually become a lawyer—and for the rest of your life—to critically examine every new idea that interests you.

Tips for Everyone Else: I’ve met a lot of lawyers who don’t actually think like lawyers. They don’t take their basic knowledge of laws and principles as the baseline from which to analyze new facts, keeping in mind changing circumstances, ideas, and policies. They just stick to the same old, same old. They try to shove square pegs through round holes. On the other hand, I’ve met plenty of people who never went to law school but who happened to “think like lawyers” when attempting to solve problems. They first gathered all the relevant facts, rules, and principles they could, then thought through all the possible ways they could use those things, or improve upon them, for the best solutions to their problems. The trick is to question your solution. Just because it’s right for someone else doesn’t mean it’s right for you. What are the pros and cons of each decision? What were the results for other people like you? How much is too much? And, always, the follow up questions: “Why?” and “Explain your answer as fully as possible.”

3. Precise Words, Logical Arguments, and Final Decisions. One major difference between lawyers and the rest of the world is the way we communicate. We were taught (It was verbally beaten into us during the first few weeks of law school!) to use precise words and logical reasoning. Before law school, we could be heard making these types of vague statements and lame arguments:

a. “You know what I mean!”
b. “You know what I’m saying?”
c. “I know it, but I can’t explain it.”
d. “Isn’t that what’s-his/her-face/name?”
e. “Oh, my God! It’s so obvious!”
f. “Everybody knows that!”
g. “It’s just common sense.”
h. “If you don’t get it, I can’t explain it to you.”
i. “Would I lie to you?”
j. “Why would I lie to you?”
k. “I swear I’ll never lie to you again.”
l. “Trust me! I know what I’m talking about.”
m. “My friends/relatives swear by it.”
n. “Everyone’s doing it.”
o. “Millions of people can’t be wrong.”
p. “That’s just the way things are.”
q. “I’ve always done it that way.”
r. “Why fix what ain’t broke?”
s. “I sorta get what you’re saying, but I just don’t agree.”
t. “No effin’ way! It’ll never happen.”
u. “That’s so wrong in so many ways!”
v. “That’s just crazy talk!”
w. “Yeah, right!”
x. “Whatever!”
y. “As if! Shaw!”
z. “If you say so.”

After law school, we stopped using such illogical arguments, at least most of us did—especially in front of judges. But, the flip side was that many of us lost our patience for less than clear communication from others, as well. We became, not exactly “word Nazis,” but, more like “precise statement and logical argument Nazis.” (Note: I’ve recovered from this condition—at least when it comes to my blog—so please don’t let this article discourage you from contacting me or leaving comments, however you like. I’ve enjoyed them all, and some really moved me!)

But, back to “precise statement and logical argument Nazis.” If someone who was trying to convince us of anything, while using pronouns or articles without having first explained exactly what those words were referring to, we usually interrupted them to get that information before letting them continue. We listened carefully to the points of their argument, weighed it against our own understanding of those issues, and, finally, announced whether we agreed or not based on our own points as to why we agreed or disagreed with their argument. If this sounds a lot like a high school debate, that’s because it is. Whatever the points presented, the final step in thinking like a lawyer is to state your bottom line conclusion. Unfortunately, most lawyers’ begin with, “It depends.” Followed by a long list of all the different factors that can affect the final recommendation. In the end, the best you can hope for is a conditional answer or an answer with a disclaimer. That looks something like this: “If X turns out to be true, then we recommend Y,” or “Based on everything we now at this moment, which we already disclosed, we recommend Y.”

Tips for Law Students and Everyone Else: Don’t assume anyone you’re speaking to knows the “who, what, where, when, how, or why” of your topic. Clarify those referents up front. Make sure your audience understand the stage and the actors, if you will, of your discussion/argument. Then, proceed point by point, linking each point to the next in line, until you have created a chain of logical inferences from your first point to your final conclusion. The fewer and less tenuous the inferences, the better the logic of the entire argument. And, that is how to think like a lawyer!

CONCLUSION

That turned out to be quite a big nutshell! More of a coconut than a walnut. It’s not necessary to think like a lawyer to solve any problems (unless you’re actually practicing law), and you never want to make important decisions based purely on logic. But, by the same token, you never want to do it based solely on emotions, either—or, worse, just guessing. Instead, use your heart and your mind for the best results. And remember to trust your instincts. Be awesome! Be your own hero!

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