Thinking Like A Lawyer

Reader Steph asked me the other day what it means to think like a lawyer. I've been thinking about this recently, because the longer I stay away from the practice of law the less I want to go back, and the more I resist loving suggestions by helpful friends that push me back into that box. I was good at thinking like a lawyer, and with time and attention and discipline I think I would have made a very good attorney. I enjoyed the subject matter, the clients, and the problem-solving. But I don't want to go back, no please no. What's that about?

Thinking like a lawyer is a kind of precision of thought that's a wonderful and unique skill. You learn to parse a question down into its component parts, to carve away the emotion and the confusion and leave only the essence. You learn to forget people and think about principles. You learn how to allocate responsibility. You don't get distracted by the problem until you understand whose problem it is, and whether it really needs to be decided now or might turn out only to be a problem later. You become comfortable with life's unfairness, and think instead about the allocation of risk. You focus a lot more on process than on result -- what questions will we have had to answer before we get to the final answer? What are the rules for answering those questions? You get familiar with situations in which everything is going to go wrong and some innocent party is going to bear it, and you stop feeling outraged about that.

You deal with a million scenarios like this: Grandma Bessie brings her heirloom diamond ring in to the jewelry store to be cleaned and plans to come and get it on Tuesday. On Monday, Wide-Eyed Wilbur goes to the jewelry store to buy his girlfriend an engagement ring, and Jake the Jeweler takes his life savings and sells him Grandma Bessie's ring. Then Jake disappears to Morocco with the money, never to be seen again. As between Bessie and Wide-Eyed Wilbur, who gets to keep the ring? Before law school, you fuss and fume about what a jerk Jake the Jeweler was, and you want to ask a million questions about whether someone could find him, or whether maybe there is any money left behind, perhaps behind a painting in a safe in the back room of the jewelry store? What made Jake run off, anyway? By 2L year, you accept the fact that these questions are irrelevant: the jeweler is gone, and you start looking at the rules for allocating bad luck to innocent parties. By the time you've practiced law for a while, you're even more practical about it, considering not only the various burdens the law allocates between the parties, but also the transaction costs of using the legal system to challenge or defend behavior.

Being good at law means you're very good at breaking complicated questions down into parts and looking without emotion at those parts. You're able to separate pain, sorrow, misfortune, shame, anger, expectation, and outrage from analysis and decisions. You're good at isolating those problems you are able to solve, and ignoring those that aren't on your plate right now. You're good at being able to move, step-by-step, to a conclusion, and to move through a series of conclusions to a specific result. You can show how different conclusions at any step might change the result.

I treasure the disciplined precision of thought I got from law school. It is a habit of mind that I value as a gift; I am smarter and more capable because of it. I like, too, the confidence I have in my own ability to navigate statutes and to parse legal language. I value my understanding of the legal system -- a grand, flawed, largely noble process of dispute resolution.

But the problem with learning and practicing law is that it elevates this kind of thinking above everything else. Narrow, precise, analytical, articulate, rational, dispassionate. I'm good at that, as far as it goes. But the truth about me is that I am also messy and sensitive and intuitive and warm and imaginative and empathetic and joyful and easily moved by beauty. I want to connect with everyone. I want to put people at ease. I want to hug old Bessie and hear stories about that ring and who in her family had it before she did. I want to sit with Wilbur and his young fiance, watching her enjoying the unfamiliar sparkle on her hand while they talk about the future. I wonder how this blow will affect Bessie's health. I wonder how Wilbur and his fiance will bear the guilt they already feel about having someone else's heirloom, wonder whether it will bring them together or infuse tension into their relationship. I love all the irrelevant details that make a fact pattern into a story, into someone's life.

The things that you learn to disregard when you learn to think like a lawyer are some of the things I most love. It's impossible, of course, to leave them behind -- I'll be warm, empathetic, sensitive, and intuitive no matter what it is I'm doing (just as I'll be curious, intelligent, precise, rational and articulate). But it feels kind of unbalanced to think about diving back into a profession where some of my attributes -- precision of thought, analytical capability, logic, abstraction, and assertiveness -- are officially venerated, while others -- sensitivity, connection, warmth, wholeness, instinct, beauty, feelings -- are considered irrelevant at best, hindrances at worst. That way lies much unhappiness. I'm looking for a more integrated path.

Comments

[B]

Shrinks will tell you that when you step back from something or someone you disconnect and become disinvested in that situation. Good for you don't look back and the heck with your friends. I have known plenty of folks who have successfully reinvented themselves.

Rock on.

[David Giacalone]

Thanks for writing a great piece, Scheherazade. "Thinking like a lawyer" is often an insult, I believe, because lawyers are frequently paid to look first at the result they want, and they then use their mental and linguistic skills to bend the law, procedures or facts in order to produce that result. Of course, it's also an insult, because lawyer verbal nit-picking done outside the provision of legal services is annoying and usually not helpful.

Here are two articles that take interesting perspectives on the topic: Thinking Like A Lawyer: Second Thoughts [47 Mercer L. Rev. 511], by Prof. James R. Elkins; and Uneasy Burden: What it Really Means to Learn to Think like a Lawyer [47 Mercer L. Rev. 543], by Prof. Peter R. Teachout (father of the Dean Campaign's web goddess, Zephyr Teachout).

[Carolyn Elefant]

Like David, I enjoyed your post - and David, I enjoyed the articles you cited. But I disagree with your premise that the law undervalues the attributes in yourself that you prize. Says who? You can practice law on your own terms?

Obviously, you have the "thinking like a lawyer skills" to succeed as a lawyer. But better, you have attributes which you can make relevant. After all, what do you think it is that breaks the tie between the two otherwise compelling sides in Bessie and Wilbur's feud? Could be passion for one's side, could be the ability to sit the two down and mediate between them, could be having the patience to ferret out a seemingly insignificant detail that makes all the difference. Thinking like a lawyer gets on so far; it's the non "thinking like a lawyer qualities," that certain "je ne sais quois" that move the law. I still believe that, truly, after sixteen years of practice.

I'm not trying to convince you one way or another as to whether you should leave the law or stay. I just want to point out that you have far, far more control over how you practice law than you think. If I'd had told my professors or classmate in law school that I intended to work part time for seven years and still keep it alive and grow my opportunities - or that I would conduct conference calls with big firm lawyers while nursing a baby or start a weblog that people actually read - I would have been laughed out of the room. I would have laughed myself out of the room. Yet here I am.

The point is that if you decide that leaving the law is right for you, then go to it - I'd have the uptmost respect for the courage of that choice. But just be sure that if you leave, it's because it's exactly what you want and not because you've been lead by others to believe that you can't have what you want in the law.

What did this post tell me? Well...it was a great piece, and well-written. But, the most revealing thing about it was that it was so long I read further down than usual and saw the "One year bible" blog...Bible blog? Blah! Major disappointment.

[Jim]

Great post. Articulates the point wonderfully.

[Scheherazade]

To the person who didn't like the bible blog -- you may not know that the list of "Recently Updated Weblogs" is a randomly generated list of Typepad weblogs that changes dynamically, and is not chosen by me. I keep it there because by happy accident sometimes it leads me or others to interesting weblogs, and some of those turn out to be worthwhile. But some may not. So to the extent you imagine that I exert any editorial control over that list, it's a misconception. The only editorial choice that list represents is my belief in serendipity.

[SF Librarian]

Wow -- such an eloquent post. I also value the training that I received in law school and during my years of practice. But when I went to work in my little lawyer duds every day, I always felt like I had to conceal certain portions of who I was to really get ahead. Leaving was a hard decision, but it allowed me to find a career (law librarianship) that engages all of me. Don't settle for anything less!

[Bob J]

First of all great post. Second question to address: at what point do you know what kind of lawyer you want to be? I'm a 2L and I have no clue. Many 2Ls have no clue. Help?

[cmc]

I thought your post was great and interesting, but awfully different from my experience practicing law. It has never occurred to me that thinking like a lawyer means shutting off feeling, intuition or empathy. Those attributes are crucial to client counseling, mediation/negotiation, or advocating a position whether before a judge or a jury.

Litigators for example may not have a reputation for sensitivity but in fact the most effective litigator is one who is able to tell a story in human terms that resonates on an emotional level as to WHY a legal principle should favor his or her client. I can't seem to think of a good example right now, but the creative/intuitibe/feeling side of the lawyer's brain is what gives life and meaning to the legal principles he uses;
these ways of thinking complement each other. After all, most legal principles are derived from real life situations and are intended to reach the most fair result for real people.

[matt]

the phrase 'think like a lawyer' and your post made me think of that song 'walk like an egyptian' by the bangles...

'think like a lawyer' indicates a certain compression of dimension, a flattening... that 'legal thinking' is a subset of 'thinking'

[Yeoman Lawyer]

Excellent piece.

In a small way, I've come to think that thinking like a lawyer, or at least thinking like a litigator, is a bit like being a member of the Prussian General Staff. An attribute of our thinking is that, as long as we stay within certain vaguely defined boundaries, we're not to bother with the right and wrong of things. So, to our way of thinking, we can be perfectly comfortable representing a person whose is guilty of a great moral wrong, and prevailing in Court, as long as we complied with the Rules of Civil Procedure, the Rules of Evidence, and the corners of the law. Conversely, if we obtain money for a person we know to be not worthy, we don't worry about that either, as long as we are within the rules.

It's a bit of an odd way of looking at things, which is why I make the Prussian General Staff analogy. We feel free to wage war for an evil cause, as long as we obey the rules. We have our orders, so we do our job. We try to win, or in a Clauswitzian fashion, we strive for the best deal we can get. The right and wrong of it, in the larger sense, are not our concerns.

I'm afraid that I've grown so used to thinking that way there are whole cateogories of things that I now view that way, and it's really hard for me to get a sense of moral outrage about anything.

[OLS]

Great post, but I agree with some of your commentators that you don't have to lose what makes you human (messy and sensitive and intuitive and warm and imaginative and empathetic and joyful and easily moved by beauty) in order to think like a lawyer.

I believe that you think like a lawyer to be able to give your client advice which they can rely upon. But then you use those other qualities to maintain the client relationship, or argue your clients case, or mediate an outcome. This, in my view, is one of the problems with law school - you don't deal with people, you deal with problems. And the practice of law inevitably involves dealing with people.

For example, I love family law and criminal law in theory, but hated the practice because of the human face of those areas of law. I couldn't deal with the emotional issues, so now I work in an area which is not particularly emotional. I believe in what I do, I believe in my client and I believe that I'm doing some good. And that's what makes my work worthwhile.

By the way, I also posted about this on my blog.

- OLS

[Edward]

I appreciate your experience sharing of being a lawyer who possesses powerful legal thinking. However, there is one point on which I do not agreei with you.I don't think you can only choose only one road: To be a disinterested person with powerful legal thinking or a passionate person. To ability to separate the two kinds in the life might belong to the field of art. And each of us shall seek to master it.

[Sangita Ashok]

My father was a solicitor, attorney-at-law who practised in SriLanka. He was by far the most compassionate, kind and humane lawyer I ever have had the opportunity to meet. He was precise, analytical, logical and yet one of the finest human beings who used his sense of fairness and balance to achieve the best outcomes. In him I saw the middle path that one must tread - to use love and passion with detachment and fairness, the makings of a fine lawyer.

[Kevin]

Reading your article raised many concerns I have about continuing my legal studies. Being extremely emotional and sensitive I find it difficult to socialise with many of my peers, who have already acquired their "thinking like a lawyer" skills. I began my programme thinking it was possible to marry the two. Now,however, I'm not so sure, emotions do seem to be a weakness. Whatever you decide, goodluck, you are extremely brave.

[generic viagra online]

i like this part of the post:"I treasure the disciplined precision of thought I got from law school. It is a habit of mind that I value as a gift; I am smarter and more capable because of it. I like, too, the confidence I have in my own ability to navigate statutes and to parse legal language. I value my understanding of the legal system -- a grand, flawed, largely noble process of dispute resolution." is verygood

[coach outlet]

I checked out this site and kind of love it I would love for more photos of the boroughs and northern Manhattan Anyone got em?

[air yeezys]

Litigators for example may not have a reputation for sensitivity but in fact the most effective litigator is one who is able to tell a story in human terms that resonates on an emotional level as to WHY a legal principle should favor his or her client.

[Air Jordan shoes]

Education is a progressive discovery of our own ignorance.

[air yeezy]

No matter how gluttonous devouring all the time, we need to breathe at this time, and strive to win our reputation, the sickle of time can not hurt us. - William Shakespeare

[True Religion]

Greeting you warmly with sincere wishes for healthy , happy , and wonderful days.

[Cheap Supra Skytop]

What is rich and poor, what is the second generation in life, as long as one should do something, brave, a person should simply happy life, don't consider so much, let oneself so trouble!

[Cheap Supra Skytop]

What is rich and poor, what is the second generation in life, as long as one should do something, brave, a person should simply happy life, don't consider so much, let oneself so trouble!

[ClubPenguin]

There is one point on which I do not agreei with you.

[negotiation skill]

A successful mentor must understand how learning occurs and specifically how you particularly learn. They can then tailor their interventions to best suit your needs, thus maintaining the focus on you and your development.