Lawyer Thinking Versus (Law Professor?) Thinking

How (practicing) lawyers think versus law students. The consequence of academic versus client-focused analysis. (Little chance at A’s!)

An aspect of a case “brief” is the issue. A professor will ask, “What is the issue [in the case]?”Perhaps the case involves a battery. Thus, a student would respond, “Was there a battery?”

Another aspect of a brief is the holding or outcome. Thus, continuing the Socratic exchange, the professor may ask, “How was this issue resolved?”

Then ensues a typically academic discussion of battery – whence the concept derived ([English] common law roots, etc.); societal purposes and implications of the law; finally how the issue was resolved. Perhaps a student is asked whether he/she agrees with the court’s decision, and why.

Only belatedly are relevant facts (already adduced) matched with requisites of establishing battery. “Analysis,” in the sense of a rigorous matching of precise facts with precise elements of battery (see following) is typically wholly absent. There is no discussion of “lawyer,” or a lawyer’s focus on achieving a client objective.

Contrast a practicing lawyer reviewing the same case. She also identifies battery as the issue. However, her immediate thought is not something so broad and amorphous as “Was there a battery?” (And certainly not “Why, whence the law?”*) Rather, can it be established that there was an intentional act (on the part of the defendant); the act was offensive (or harmful); the act was unprivileged (not consented to); it resulted in contact (actual touching) with the person complaining (plaintiff).

Whether advocating for plaintiff or defendant, the lawyer will carefully weigh supporting facts (and reasonable inferences from those facts) on both sides of the foregoing requirements (“elements”) of establishing battery.

[Note. This is what law professors mean when they admonish students to, “Be objective!” They mean weigh and argue facts on both sides, as a lawyer would. However, this remains unclear, as lawyers (and their role and how they think) are rarely brought into the discussion.]

The habitual focus of practicing lawyers is to break precepts – rules, statutes – down to comprehensible components. They closely examine facts to determine whether a component (and the sum of components, the overall legal precept [here, battery]) can be established. (“To a preponderance” in a civil instance; “beyond a reasonable doubt” on the prosecution side in a criminal instance.)

If facts are insufficient for determination, a lawyer may seek more facts. (Investigation!)Emphasis is on a plodding, often tedious, nitpicking matching of (relevant) facts and (relevant) law, more component aspects of the law. (Creating sub-issues!)

This is called “lawyerlike analysis!” Its essence – a nitpicking, tedious matching of components of rules with facts – is altogether missing from case method instruction.

[Note. Absent clients, client objectives, the high stakes, win/lose aspects of actual law practice – the incentive for lawyers (!!) –, such tedious analysis is boring. This is one reason for the flight to (more interesting and entertaining?) “higher (loose, academic!) thinking” about the law in law school classrooms.]

“Battery,” “contract,” “jurisdiction,” “burglary,” “robbery,” “self defense,” “holder in due course,” and countless other legal precepts tend to remain ambiguous and academic in the law student mind. The focus is only marginally on exactly what such precepts mean, their precise definitions.

To a practicing lawyer all such precepts are but tools that may come into play in advocating for a client end. Experience has instructed that overlooking the smallest nuance of fact or aspect (component) of a legal precept can lose a case. Therefore, precision of meaning is essential.

For example, the “unprivileged” element of battery requires that the act complained of say, striking with a fist – be unconsented to. Consent, however, can occur in two different ways. It may be “actual” – express permission given. It may also be “implied,” as when opponents engage in a boxing match and blows are struck. (No battery!)

Always a lawyer’s focus is on a client and a client goal. If underlying, overarching aspects of a legal precept come into play – larger societal implications, etc. , it is only as part of a process of persuasion on behalf of a client to achieve a client end.

A law student lacks such a (client goal) focus entering law school. Neither professor nor case method introduces or instructs such a focus. Emphasis is on law as an end in itself – perhaps as a reflection of societal mores, as an instrument of social change. Discussion is abstract, academic.

Students, for so many years steeped in academics, are quite comfortable with this. However, they will be blindsided by eminently practical, perform-as-a-lawyer requirements of exams featuring complex fact scenarios and instructions, beginning, “Imagine you are the lawyer for …:” “Imagine you are a judge deciding ….”

Precise knowledge of legal precepts (required to perform “lawyerlike analysis”) is neither emphasized nor instructed by case method. Professors may assume precise knowledge of law – definitions – in class. However, they rarely say, “define battery,””define assault,” “define burglary (or robbery or conspiracy),” “define holder in due course.” (The latter a property law precept.)

The “analysis” law professors want and expect to see on exams cannot only best be instructed within a framework of focus on a goal and advocacy on behalf of a client. It can only be instructed within such a framework!

Case method instruction could, with but minimal tinkering, provide such a framework. However, at present it does not. Lawyers, clients, client objectives remain in the background out of focus. Law practice and the essential lessons it offers for proper, rigorous “lawyerlike” analysis is ignored.

Respecting the need to know legal precepts more precisely, law students know better following the first set of exams. They feverishly memorize legal rules and principles. There are flash cards for such purpose.

However, only the give and take of goal-focused lawyers battling on behalf of  clients (or a simulation thereof, such as LEEWS provides) can instruct nuances and fine points of law, never mere memorization. Students have not learned how to analyze and think “as lawyers.” Therefore – cart following horse –, they cannot learn the law with sufficient precision to analyze “as lawyers.”

Thus, there is scant chance of producing analysis that impresses and results in an “A” exam response.

What fails students is not intellect or diligence, but case method instruction!

[Note. Students disappointed with exam results invariably say, “I knew the law.” They come to understand that “knowing the law” in order to “analyze as a lawyer” is something far different. Analyzing “as a lawyer” is a skill accessible to any of reasonable intelligence. However, it is different from ordinary analysis. It must be properly instructed.]