Teaching People To "Think Like Lawyers

Behind the firewall, today's New York Times prints "A Skull Full of Mush" from Ann Althouse. (Er... I mean it prints an editorial called "A Skull Full Of Mush"....)

Professor Althouse reminds us of the fictional Professor Kingsfield of The Paper Chase who defends his law school teaching methods by declaring "You come in here with a skull full of mush, and you leave thinking like a lawyer." She relates this in the context of a conference in which the author of that book rejected the Kingsfield approach to legal education in favor of one which allows students to develop their own narrative. (I'm not sure what that means and Althouse doesn't explain; I suspect she chose to use that particular phrase without providing any context because, standing alone, it sounds so wishy-washy. If that's the case, though, what can I say? She's "thinking like a lawyer.")

We law professors tend to worry about seeming like Professor Kingsfield. But we ought to worry less about that prospect and more about preserving and respecting our own tradition of teaching from the cases.

The students who come into our law schools are adults who have decided that they are ready to spend a tremendous amount of time and money preparing to enter a profession. We show the greatest respect for their individual autonomy if we deny ourselves the comfort of trying to make them happy and teach them what they came to learn: how to think like lawyers.

One of the best student experiences I had in law school was being taught by J.J. White, who was probably the most like Professor Kingsfield of any professor at UM. He knew his material cold, and I had the impression that he spent more time reviewing cases and preparing for each class than did most of his students. He did instill some fear, because you knew that if he called on you and you were not prepared (or were wildly off the mark) you were likely to experience some embarrassment. Some students hated him, but I doubt that there was one who wasn't inspired to work hard and think hard. His politics were obvious, but they didn't factor into his grading.

Had every professor at UM been like him, I would have had to work a lot harder and I would have learned a lot more. Instead, I found that he represented a certain class of older professor who had high expectations for students, had a tremendous amount of knowledge and self-discipline, and wished to impart knowledge of the law. Perhaps some of the more socratically-inclined younger professors eventually develop a similar set of teaching skills, but I was left with the impression that for many of the younger set the term "socratic method" was shorthand for "I don't have to have a lesson plan or prepare for class because I can fill an hour by lobbing questions at students". Some were all about ideology, caring a lot less about whether students came to learn the material than if the students ended up sharing their perspective on the material. Which isn't to say that they're necessarily dishonest - I suspect that they believed their positions to be correct, even if the nation's legislatures and courts hadn't (and still haven't, and aren't ever likely to) come to their senses.

Is there is a sense in which learning to write for such a professor is learning to "think like a lawyer"? You either develop skill in fashioning an argument you don't agree with or you get a lower grade - and is it not true that at times lawyers have to raise potentially meritorious arguments that they don't personally agree with in order to protect the interests of a client? (See? Skip over the "potentially meritorious" part, and it's an important lesson in "thinking like a lawyer.") Well, you might be able to make that argument if the professor is intentionally grading down correct answers on the basis of ideology which, Supreme Court advocacy aside, isn't an approach particularly compatible with "thinking like a lawyer". Maybe it's a lesson in "writing for your audience" - also an important legal skill? Er, maybe I shouldn't have to work this hard to make excuses for bad, lazy teaching. In these cases it wasn't the student who had the "skull full of mush".

In retrospect, when I look at what taught me to write like a lawyer, it wasn't the wretched student-led writing program that UM then inflicted upon its 1L's. It was a clinical class in criminal appellate advocacy, taught by a practitioner. The instructor opened the first session by telling us that whatever we had been led to think constituted "good legal writing" by virtue of law school instruction was largely incorrect, and over the course of a semester demonstrated that he knew what he was talking about. It's much harder to pinpoint how I learned to "think like a lawyer", although I can assure you that not every law professor I had contributed to that process (save, perhaps, as sardonically noted above).

I'm not going to argue that "thinking like a lawyer" means you have to shut up if you don't know what you're talking about. But knowing when to sit down and shut up is a part of good advocacy - whether because you've won the point and continuing would be beating a dead horse, because you risk exposing the weaknesses of your argument if you continue speaking, or because you're starting to sound like you're being arrogant or bullying. (At the same time, sometimes being provocative is a good way to induce your opponent into overplaying his hand.) When I post here, I rarely get a good back-and-forth in the comments, but I enjoy that as an opportunity to improve my knowledge and the way I think about the issues under discussion. (Yes, folks, all rumors to the contrary aside, lawyers tend to be more argumentative than the average person, and to approach debate as something to enjoy, not something to dread. That's not something you learn in law school, but it is something that helps take you there.)

I am not sure that J.J. White ever told my class that he was going to make us "think like lawyers". (He did tell us that law firms regarded us as fungible, and he also correctly forecast that most of my classmates on the political left would prove to be "limousine liberals", casting aside plans for careers in public service for a six figure law firm salary. He was right on both counts.) Had he done so, I would have believed him. But the professors I recall hearing that from, usually as a defense of their dubious teaching methods, didn't have a clue how lawyers think. They knew how to think like a law professor, and perhaps even to think like a Supreme Court Justice they once clerked for, but that was about it. For somebody who admitted hating practice, being unsuccessful in practice, and having a whopping two years of law firm experience in which he admitted the closest he got to courtroom advocacy was literally carrying bags for a partner, to tell me he can teach me to "think like a lawyer"? That's a joke. (And, of course, it happened.)

For the most part the claim, "You're learning how to think like a lawyer," is a cop-out. It's a cover for bad teaching that can't be defended in concrete terms. My challenge for Professor Althouse: Please provide a clear definition of what it means to "think like a lawyer," and which law school teaching methods have been legitimately established to establish those skills.