Tuesday, March 29, 2016

Is "Thinking Like a Lawyer" Worth It?


One of the main benefits of law school is learning how to "think like a lawyer". The benefit of learning this magical thinking is ostensibly worth the $120,000-$180,000 spent by law grads over three years. Professors claim that their hide the ball, hazing methods instill this important skill in the heads of all 1L's. But what does "thinking like a lawyer really entail? And more importantly: is learning "how to think like a lawyer" worth the money?

It is worth explaining exactly what "thinking like a lawyer" means. An article by our friends at Above the Law does a good job of introducing the concept. The ATL article points to an article by Lisa Mazzie at Marquette that gives the following examples of "thinking like a lawyer":
  • Make “distinctions that do not make a difference to most people”
  • See “ambiguity where others see things as crystal clear”
  • Look at “issues from all sides” without stating your own position
  • Artfully manipulate facts to “persuasively argue any point”
  • Are “far more adept at analysis than decision”
As I've alluded to in the past, I now work in a non-law job that I am very happy doing. Part of my job is ensuring regulatory compliance of the products we create. I have the misfortune of dealing with clients' in-house and outside counsel from time to time. Let me break down what I see from lawyers, dealing with them as an outside observer. Many attorneys bring up points that are de minimis or outright wrongheaded. They look for exotic or uncommon ways to interpret regulations whose plain meaning is apparent to everyone else. This is usually done in service of risk minimization. The problem is that any business employing people who have even a modicum of common sense take potential lawsuits into account and evaluate the risks before acting. My company already has a process to consider and quantify potential risks and then choose a course of action based on deep analysis. The lawyers then jump in at the 11th hour to gum up the works with inane nonsense. In one of the most galling examples, we have a client whose in-house counsel is so "careful" that he has caused them to miss an important regulatory deadline three years running.

One of the glaring drawbacks to "thinking like a lawyer" is that most lawyers have no sense of how their opinions affect the business at hand. In another case, we had a client whose lawyer must have gone to a CLE. She then sent a note to our client team and asked us to add language in their product disclosures addressing an issue that literally no one else in the last twenty years has thought fit to address. When asked by the client team why the lawyer felt the disclosure should be added, she said that if an extremely unlikely and remote chain of events occurred, she wanted to be sure that client would be protected. I guess a lawyer is supposed to think of all the possible risks. But, the great lawyers have the ability to consider all of the factors in a situation; the average lawyer thinks of each matter as being in a vacuum and does not have any qualms in giving directly contradictory advice about the next matter presented. Temperance and awareness are not taught in law schools. Additionally, there is no incentive to think practically and effectively when coming up with unlikely scenarios adds an extra $500 per hour to the clients' bill for the month.

"Thinking like a lawyer" is a concept that has some utility to the stereotypical law student. The stereotypical law student is a liberal arts graduate who goes to law school because she doesn't know what else to do. A person who makes the decision to go to law school without having a clear and articulable goal of what he wants to accomplish is going to benefit from learning some critical thinking skills. However, law schools, like most of what they do, only give law students partial training. Law students are taught to question everything and look at an issue from all sides (these points are debatable). But, law schools do not teach students to apply these skills practically. When students get out into the job market, the billable hour system encourages attorneys to continue thinking inefficiently and impractically. New lawyers do eventually need to develop the ability to apply practicality to fact patterns. But just like with learning how to actually practice law, law schools leave these tasks to employers. 

Learning how to "think like a lawyer" is not worth it. The current price of law school is a high price to pay to learn how to think critically. Undergraduates without any idea of what the next step in their lives will be are better served by entering the job market and maturing a bit. The law schools' value proposition is falling apart when even the slightest scrutiny is applied. We have seen that law schools are trying to integrate "practice readiness" into curriculums; these are half measures that do not address the base issue. Law school is a trade school with an elite veneer draped over it. Schools need to get over their intellectual pretensions and confront reality. But we all know that professors and administrators will hang on to the status quo until it's too late. All we need to do is get some popcorn ready and watch the spectacle unfold.

Note: edited for grammar and clarity 

27 comments:

  1. No, thinking like a lawyer is never worth it. I do not like how lawyers think. That much law school taught me.

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  2. Agreed, MA. I deal with compliance/regulatory issues too in my bar-licensed "JD-Advantage" position. You can always tell when a lawyer is out of their depth, plaintiff or otherwise, in that they insist on things that no one else requires (even the other attorneys involved) or they cross out things in an agreement they basically don't understand or have had no prior exposure to due to an overabundance of caution (or hubris), but are common practice in the industry.

    But this is what it has come to. With so many underqualified and inexperienced lawyers chasing so few dollars, you don't dare admit that you don't understand something or that your knee-jerk reaction isn't based on experience.

    Gotta get that dollar y'all, so fake it till you make it...until you gum up the works shooting from the hip, then paint yourself into a corner where you can't admit your overreach without losing face in the process.

    Thanks, law school cartel. You say "see ambiguity where others see things as crystal clear,”, I say "2-to-1 over production for decades leads to gummed-up works, and this is one of the externalities created by your money grab."

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    1. Excellent comment. Every law school applicant should read this.

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  3. Law schools do not teach "thinking like a lawyer" well. It should be taught explicitly, not by hiding the ball. In addition, thinking like a lawyer consists of miniskills--rule-based reasoning, analogical reasoning, synthesis, distinguishing, and policy-based reasoning. Once these miniskills are mastered, law students need to be taught how to apply them in detail. The ultimate goal is to develop legal problem solvers who can help clients in the real world.

    I go into detail about developing legal problem solvers in my book, Think Like A Lawyer: Legal Reasoning for Law Students and Business Professionals (ABA Pub. 2013).

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  4. To me, the phrase "thinking like a lawyer" is a pejorative expression. I would actually be offended if someone told me that I thought like a lawyer. The important question, to me, isn't "Is thinking like a lawyer worth it?" but rather "Why would anyone even want to think like a lawyer in the first place?"

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  5. I never went to law school myself, but it seems like law school itself is the most delusional aspect of higher education, because everyone deludes themselves about how great they are and how wonderful the experience is. So many students think themselves to be like Elle Woods from Legally Blonde, and so many professors think themselves to be like Professor Kingsfield from the Paper Chase. (Although, of course, the law professors get paid obscenely well to live out their delusional fantasies, while their students get to see their own lives break apart and disintegrate.) My point is, so many fools seem to think that law school is a magical experience which will magically turn its students into smarter, wealthier, and more respected (or feared) people.

    As for the value of "thinking like a lawyer"... nah, sorry, I just don't see it. Everyone should be able to think critically, and everyone should learn how to do that earlier in life and well before they hit the eligible age for attending law school.

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  6. Indeed, thinking like a lawyer is a detriment for most purposes. There's a reason why people avoid dealing with lawyers if they can help it; thinking like a lawyer typically makes you insufferable at best.

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  7. This is all wrong. Thinking like a lawyer is this: When I walk into a Walmart, I check for liability and torts. Everything is a potential PI....I smell liability.....Any deep pocket defendant has a target. I am a hungry lawyer with 200K in student loan debt. Ice build up? Liability. Get ill after eating? Liability. Chipolte? Beautiful. Buy a Cobalt? I just get giddy. I walk around with Law Suit fairies dancing in my head. That my fiends is thinking like a lawyer.

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  8. This is how to "think like a lawyer." (1) Be clever. Find or imagine a loophole, even if it makes nonsense out of the text you are interpreting. (2) Don't waste any of your bad ideas. You never know what will confuse the judge. (3) Don't show off by counseling your client to stay out of trouble and cut his losses. (4) Don't waste time your reading the cases you quote. (5) Don't ever let another lawyer try to change a word of anything you write.

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  9. It's the same as a lot of other things.

    The station of the one addressing others determines the perception of the comment.

    So if you're in-house counsel to a Fortune 50 company, what you say carries weight, even if it's the same exact thing as a homeless person. The homeless person will be ridiculed, the in-house counsel lauded.

    Nobody learns to "think like a lawyer". If anything, it's more a devolution back to childish naivety that life experience tends to erase. "Why?" as a response to every statement, or requesting information on the most pointless things that don't matter are the acts of children who don't know better.

    So a top lawyer acts like a child and is respected. A nobody does it and they're thought to be mentally deficient in some way.

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  10. I practiced law for about 10 years in various settings (graduated at age 33), in between some law related consulting work. Even since 1997, the field has changed. Some 4 years ago I decided to get out for good after finding that the "prestigious" firm with which I was working and had asked me to come on board as of counsel was lying to its clients regarding potential results of litigation. Turned down a lot of money for that privilege. Since then I have made a transition into marketing research (I have a Ph.D.), and while not easy it is a much more relaxing and enjoyable work environment. I truly like most of the people I work with, and am becoming more human with each passing year.

    Truth is I miss legal reasoning - did well enough in law school and have an intensely critical mind. But using it to break others down just got old. I despised the pervasive sleaze of the work, and even the judges now seem more motivated by political concerns than following the law.

    Compliance work has caught my eye and I would not rule it out. It does seem like an honorable alternative to law where those who like to interpret language and write can exercise those skills.

    At any rate, as a fellow refugee from the field, I enjoyed this piece and wish all those looking to regain their humanity the very best.

    Perhaps one day something will heal this field. But I am not sure what that will be, and at present the legal field is more the enemy of our fellow citizens than any kind of noble profession.

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    1. Regaining your humanity is a great way to describe the post law rehabilitation required for one's soul.

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  11. I agree, especially with MA's final paragraph.

    I would define the alleged skill of "thinking like a lawyer" as the ability to formulate and present a logical evidence-based argument within the confines of established rules and procedures. It is a very basic ability, common to lawyers, but utilized all the time by nonlawyers in all sorts of contexts.

    The complexity of lawyering is in the grinding process of eliciting the salient facts and in navigating the often elaborate and confusing procedural and substantive legal rules. That is to say, the complexity is in the actual practice of law, which is precisely what law school does not teach.

    "Thinking like a lawyer" is a phrase often touted by law professors and administrators, but rarely encountered outside the academy. And in the law school context, "thinking like a lawyer," is just mysticism and scam. Law schools want you to believe that they are providing a rare and powerful mental skill set in order to obscure or minimize the fact that they have rooked you out of three years and a borrowed fortune and provided utterly inadequate professional training and remarkably meager legal knowledge to boot.

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  12. Thinking like a lawyer = common sense + attention to detail

    You can't teach this stuff. You either have it, or you don't.

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  13. Law school does NOT teach you how to think like a lawyer. In fact, law school doesn't teach you much anything about the actual practice of law. The only thing that law school does it teach you how to think like a law professor or a judicial clerk. For almost everyone that knowledge is irrelevant. When working, you never get into long discussions distinguishing cases or examining public policy, but law schools don't know this because the people who run them have never stepped outside of the ivory tower. It's actually pretty absurd.

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    1. This is exactly right.

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  14. Law school - at its best - teaches what freshman English and rhetoric, and required humanities courses, used to teach to every college graduate - how to read complex primary texts and commentaries and use them to construct persuasive, balanced arguments with analogical and deductive reasoning.

    That's why law school was once a one-year LL.B degree - basically a bar prep course. Justice Harlan and Wallace Stevens both took that course at New York Law School at the turn of the century. So did most practicing lawyers in big U.S. cities, many first generation lawyers who went back and served their communities. (Now look at NYLS - a $180,000,000 Taj Mahal built during the law school bubble.)

    But most liberal arts graduates nowadays finish college with poor reading comprehension and not much information in their heads.

    For their part, law professors - who have received their own narrow version of culture and professionalization in Ph.D. programs - have decided that law school should be a graduate department of sociology, history,philosophy, or whatever. One law school dean recently said when asked about his legal accomplishments, "I'm not a lawyer. I'm an intellectual who trains legal brains."

    The institution, in other words, is a think tank for law professors who talk only to each other (once a week and behind closed doors) and write journal articles for the hundreds of redundant law journals. None of them even read each others work.

    After they get tenure, they enter a prolonged retirement, teaching two days a week, seven months a year. They still have in mind, however, the imaginary riches they left on the Wall Street table by taking the path less traveled.

    No law professors ever receive any training in what they do for a living - which is teach law. The law students know how badly they are being taught and complain about it all the time, but to no avail.

    The law schools employ instructors, adjuncts, and numerous administrators who are paid to do jobs that no one even imagined doing twenty-five years ago. The bulletin board on which job listings used to be posted by a secretary has become a career development office with five administrators and a Vice-Dean.

    Instead of students apprenticing out to lawyers, like medical professionals do as part of their mandatory training and licensing, every law school has numerous clinics where professors pretend to be working on cases, but no one really knows what they are doing.

    Instead of third year students and adjuncts tutoring the 1Ls on their memos and briefs, the Law School has a staff of disgruntled full-time instructors, who serve the additional purpose of giving the voting faculty someone to look down on.

    Instead of the austere ivy-covered classroom building with tiered seating, slate blackboards, and wooden chairs, every law school has an open-space atrium with office space, Aeron chairs, and cherry wood paneled conference rooms worthy of a Wall Street law firm.

    The law school offers courses like "Third World Approaches to International Law," "Race, Space, and Place," "The Intersection of Class, Race, and Gender," "Environmental Law in Israel and Palestine." (This in the cosmopolitan city of Buffalo, New York.) The law school curriculum is maintained without any thought for how the students who are encumbered with debt for this legal education are going to provide legal services to those in society who don't have it.

    Even CUNY Law School last year moved from a junior high school on Main Street in Queens that cost two million to renovate into a law school in 1986 into the bottom half of a Taj Mahal originally built for Citibank (before the 2009 crash) across from the 57th Street bridge (top floors occupied by JetBlue corporate management) that cost the city $240,000,000. That in a law school chartered and sponsored by the city for public interest law.

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    1. Jumping in to defend CUNY law here. The school really did need to relocate from the middle school it inhabited because its prior location was awful to get to in terms of public transportation. For a school devoted to giving lower income folks the opportunity for legal education, at what is still a reasonable tuition (unlike, say, NYLS) being easily accessible by public transit is really important.

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  15. Duped/Dubyk/Old Guy, did you see where the WSJ reported that a NY Judge dismissed a Bar loan in bankruptcy? (I think it was in yesterday's paper, page C-3).

    The plaintiff's fact situation (Pace graduate who couldn't pass the bar and now is some $300k in debt, if I recall correctly) is just as interesting.

    (I apologize for the double posting to TTR, and my spelling error on that post.)

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  16. A listing of the Law School's departments and those individuals working in these departments.
    Vice Dean for Academic Affairs
    Vice Dean for Administration
    Director of Clinical Legal Education, Vice Dean for Legal Skills
    Vice Dean for Research and Faculty Development
    Vice Dean for Resource Management
    Executive Assistant to the Dean
    Staff Assistant for the Dean's Office
    Vice Dean for Strategic Planning and Operations
    Director of Special Events
    Administrative Assistant for Resource Management
    Assistant to the Vice Deans for Administration and Student Affairs
    Vice Dean for Admissions and Student Life
    Associate Director of Admissions and Student Life
    Marketing and Recruitment Coordinator
    Administrative Assistant for Admissions and Student Life
    Admissions Assistant
    Vice Dean for Alumni, Public Relations and Communications, and Executive Director, Law Alumni Association
    Assistant Dean for Alumni & Communications, Assistant Director, Law Alumni Association
    Assistant Director of Alumni & Annual Programs
    Alumni Database Manager
    Administrative Assistant for Alumni Relations
    Director of Special Events and Reunions
    Associate Dean for Career Services
    Associate Director for Career Services
    Assistant Director of Career Services
    Externship Program Administrator, Public Interest Coordinator
    Webmaster
    Associate Dean for Development, Director of Development
    Vice Dean Major Gifts Officer
    Major Gifts Officer
    Assistant Director of Philanthropy (Annual Fund)
    Assistant Director of Development Programs
    Assistant Director of Alumni & Annual Programs
    Administrative Assistant for Development
    Assistant Dean for International and Graduate Education
    Manager of Law School Technology
    Law School Systems Administrator
    User Support Technician
    Computer Lab Manager
    Instructional Support Technologist
    Law Library Director, Vice Dean for Legal Information Services
    Director of Records, Registration and Financial Aid; Registrar
    Assistant Director of Records, Registration & Financial Aid; Assistant Registrar
    Administrative Assistant for Records, Registration & Financial Aid
    Financial Aid Coordinator
    Director of Program in International Finance & Law
    Director of Academic Support
    Co-Director of Trial Advocacy
    Co-Director of Trial Advocacy
    Director of Moot Courts
    Director of Journals
    Administrator for Skills and Special Programs
    Vice Dean for Student Affairs
    Director of Special Events
    Assistant to the Vice Deans for Administration and Student Affairs

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    1. That my friends is why no ABA law school will ever close again: Look at all of these bullshit jobs. God, this looks worse than the large County I practice in. The County will never get rid of people or cut the fat. Fat is turning the thermostat down a half degree and copying on both sides of the paper and then hiring two politically connected folks to supervise cutting the fat.

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  17. "Temperance and awareness are not taught in law schools."

    Yup, among other things. My problem with "thinking like a lawyer" is that law professors seem to have ideas that are odds with how actual lawyers in the trenches should think, which leads to such a wide range of definitions that effectively render the phrase useless or counter-productive.

    Take Mazzie's criteria from the perspective of basic civil litigation:

    1. Make “distinctions that do not make a difference to most people”
    2. See “ambiguity where others see things as crystal clear”
    3. Look at “issues from all sides” without stating your own position
    4. Artfully manipulate facts to “persuasively argue any point”
    5. Are “far more adept at analysis than decision”

    Number 1 is true of almost any knowledge-based profession. For example, certain herpetologists are more adept at telling the difference between king snakes and coral snakes. A musicologist knows the difference between a diminished 7th and a minor 7th. Surgeons know the difference between the hepatic duct and the cystic duct. That isn't a sign of thinking like anything, but of very narrow encyclopedic knowledge.

    2 is a detriment as presented. The proper skill in litigation is knowing when the other side is presenting something as crystal clear that is not so. Finding ambiguity when something is crystal clear to opposing counsel, the judge, and the appellate court is a great way to annoy everyone, do a disservice to clients, get sanctioned, and go out of business. All too often, this is a step away from what tax protesters do.

    3 is practically impossible and theoretically stupid. Everyone in litigation - judge and appellate courts included - is dealt a hand at a the onset. There is no objective, above-the-fray view for anyone, particularly since no one has a complete view from all sides - and never will. The proper skill is to be able to constantly reassess the strengths and weaknesses of your hand as new cards turn up to weigh risks and benefits.

    Number 4 is like number 2 in that it will lead to more trouble than good and is more a skill for debate club. Being a good lawyer is knowing when to push the chips onto the table and knowing when to fold even if you think you can persuasively argue something. Thinking like a lawyer isn't so much about being able to win every fight as much as it is about knowing when and where to fight to ultimately best position the client. Besides, there's not really many points in litigation where you're arguing "points." A better skill would be the ability to build information that makes it easier to win arguments before they're even being argued, like through skilled deposition questioning (one of the few unique skills to lawyering, at least for litigators, and it's not taught at all in law schools)

    Number 5 is flat-out stupid as they're not mutually exclusive traits and lacking decisiveness is a surefire sign of a lousy, insecure, or inefficient lawyer.

    From a litigation perspective, thinking like a lawyer is most akin to thinking like a player in a complex strategy game. Law schools teach you how to evaluate each player's position on a static board (i.e., who should win or lose at any given point in time), but they totally fail at teaching how to play the game, i.e. when and how to use the various options, which are much broader than law professors ever present. It's a fundamental limitation on the system that law schools refuse to admit, instead changing the nature of lawyering to be this academic pursuit of analyzing every possible viewpoint where there's clients or opposing counsel throwing spanners in the works of your jolly little lucubration.

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  18. The statement that Law School “makes you think like a lawyer” was shorthand for the now long-dead notion that getting accepted into, and then getting through, the three years was The Path to enter Lawyerdom. It was intended to convey something like: “Law school is a professional right of passage and closely akin to Boot Camp; it is somewhat selective, and the drills they put you through are tangentially related to the things some lawyers do. AND IT LETS YOU GET THAT LAW FIRM JOB.” Professor Kingsfield exposed you to a lofty authority figure who was intelligent, gruff, short of time, and impatiently demanded an answer.... kind of an introduction to a senior judge or partner. And there’s talk about “torts,” “promissory estoppel,” “consideration,” and the Rule Against Perpetuities. So you’re learning that there’s a professional lingo.

    Of course, most of the activities imposed on trainees/cadets in boot camp are not intended to impart substantive knowledge or even competence. Memorize the list of the Academy’s Commandants. “Cadet, How tall is the flagpole in inches?” “I don’t know, sir?” “Drop and give me 20, you worthless fish!!”

    Not exactly cutting-edge education, but a traditional form of indoctrination. And there’s even a sense of comradery that emerges by simply going through it.

    In an earlier day, when the schools were more selective, when entry-level jobs were somewhat more plentiful, and when the market far, far less hyper-saturated, this all (mostly) held together.

    No more. The market is now so grotesquely over-hyper-saturated, and the profession and marketplace have transitioned away from the old norm, that the three-year boot camp analogy has long since broken down. We simply don’t need so many lawyers. In fact right now, for the foreseeable future, we don’t need any more. The unfortunate top graduates of the next several years will find 2-3 year stints at revolving door firms, but they certainly won’t have a career.

    Take away the armed forces, and the boot-camp style of hazing loses its rationale.

    The obscenity is the law schools lack the integrity to simply say so.

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  19. Maybe the idea is: "See how we ripped you off? Now go do that to clients. Congratulations, you are now thinking like a lawyer".

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  20. Sad, this sight is a fraud. I posted yesterday about how I did not agree with the OP's piece in the least but it never made it here. You people are simply blind to considering other sides, other opinions, other positions. That makes this site not worth reading because only your opinions are worth publication on your site. Pitiful.

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