In Michael’s last post, he covered Brian Leiter’s histrionic reaction to an e-mail that challenged Leiter’s knowledge of what it means to “think like a lawyer,” due to Leiter’s lack of experience at actually being a lawyer. But, as has been noted elsewhere, nowhere in Leiter’s response did he actually address the e-mail’s subject: can a non-practicing law professor know how to “think like a lawyer?”
But before you can answer that, there’s a more definitional question that needs to be resolved first: how does one “think like a lawyer,” anyway? There is rarely a concrete definition provided for this phrase; it is usually given the Justice Stewart treatment, in that one simply knows it when they see it. What is the thought process, then, that evokes this description?
In my own experience as an attorney, I have often had clients accuse me of “thinking like a lawyer.” Good-natured accusations, of course; after all, that’s what they’re paying me for. I was also once accused of “thinking like a lawyer” by a judge — but the judge, unlike my clients, did not intend it as a compliment. (More the opposite, really.) And I’ve gotten accused of “thinking like a lawyer” by other lawyers, too, albeit most often when I’ve come up with a legal theory that is too clever by half.
And from thinking back on my own experiences, and trying to identify the common thread in all of those incidents, the best definition I can come up with is this: to “think like a lawyer” is to engage in an inverted version scientific method. It is the art of identifying the plausible, and then portraying it as the logical. In short, people accuse you of “thinking like a lawyer” when you find a way to depict a given set of facts and law, in an accurate but deliberately emphasized fashion, so that the data compels a conclusion that has been pre-established by the lawyer.
It is an inversion of the scientific method, in that the data does not — and, I would argue, cannot — compel the conclusion. The conclusion is predefined, and the lawyer’s job is to sift through the data and construct an explanation that results in the conclusion. But the steps followed in the scientific process are not all that different from the steps of the legal process, it is just that the legal method follows those steps in a slightly different order.
In defining the scientific method, Wikipedia provides the following methodological process:
- Define a question
- Gather information and resources (observe)
- Form an explanatory hypothesis
- Test the hypothesis by performing an experiment and collecting data in a reproducible manner
- Analyze the data
- Interpret the data and draw conclusions that serve as a starting point for new hypothesis
Both the scientific method and the legal method begin at the same place, and Step 1 for both methods is the same: define the question. For the legal method, the starting point is, What is my client trying to achieve? What is the client’s win condition? (Or, if you happen to be a law professor: what is a journal article conclusion that is likely to be published?)
But after the first step, the scientific and legal methods diverge sharply. Whereas the scientist proceeds to Step 2, the lawyer instead skips right ahead to Step 6: what are the possible results of the legal process that come the closest to achieving my client’s objectives? There are almost always a few different legal outcomes that would satisfy at least some of the goals of the representation, although there are usually trade offs between them. Luckily for the lawyer, she is not hindered by the scientist’s need for a single, unified result. The lawyer can have multiple possible results, and, at least if you are litigator, there isn’t even a requirement that those results not be mutually exclusive results.
Once you have your result(s), the lawyer then goes back again, and moves on to Step 2. Although, for the lawyer, Step 2 is actually a two-parter: Step 2(a): gather and identify all the relevant facts, and Step 2(b): gather and identify all the relevant law. “Relevant” in this context means “could be useful,” either for the lawyer or the lawyer’s opponent. Trying to efficiently identify the most important factual and legal data is a skill in itself, but as a starting point, you need to establish the important factual matters that can be proven by admissible evidence, and then to determine the statutes and case law that will be directly relevant to the case.
And then it is on to Step 3 — and the point in the legal method where “thinking like a lawyer” really kicks in. In the legal method, the lawyer examines the relevant facts and the relevant laws, and identifies all the plausible methods by which the two can combined to achieve one or more of the results that was defined previously in Step 6.
Luckily for attorneys, law is not science; it is not defined by reference to a pre-existing reality, and it is not limited to formulations that are consistent with this pre-existing state. It only has to be consistent within itself. Which means there are lot of plausible ways that those facts and laws can be combined. The question for the lawyer, then, is what are the possible hypotheses that might be consistent with the relevant factual record? You are not looking at what did happen, you are looking for everything that could have happened. Then, taking the resulting class of possible hypotheses, you examine each of them in turn for their consistency with the results defined in Step 6.
And, also luckily for attorneys, “consistency” in this context is defined broadly. Oftentimes, a given statute can be both consistent and inconsistent with a desired result, depending on how you emphasize a word or two in its provisions. “Consistency” can also mean constructing a revisionist version of history — leaving aside what an actor’s subjective motivations were, what are all of the plausible explanations for that actor’s behavior given the post hoc data set you have established?
Then it is on to Step 4, which is creating experiments to test your arguments — or, as we call them in law school, hypotheticals. In short, you test the plausibility of your own explanations, by examining their consistency with existing case law, and by comparing the plausibility of your explanations against the plausibility of your opponent’s, and trying to make sure your explanations are always the more plausible option. And, finally, we arrive at Step 5. For the scientist, Step 5 is analysis; for the lawyer, Step 5 is advocacy. The scientists examines the data they have acquired from Steps 2-4, and then determines how that data might contribute to our understanding of the world, and so arrives at Step 6. The lawyer does not need to bother with that part, because they’ve already established Step 6; to the lawyer, Step 5 involves demonstrating why your explanation of the data is more believable than everyone else’s rival explanations.
And that, in a very large nutshell, is how I would describe the process of lawyering.
So, now that I’ve provided my own definition of what it means to “think like a lawyer,” we return to the original question that so enraged Prof. Leiter: can a law professor who has never been a practicing attorney “think like a lawyer?”
Absolutely. The basic method of thinking like a lawyer is the same for both a law professor and a lawyer. The primary distinction is that the two have very different objectives, but the process they use is more or less the same.
The law professor is different from the lawyer in that — at least ideally — the law professor’s motivation is to identify the most plausible construction of the data that supports a conclusion intriguing enough to be published, whereas the lawyer’s motivation is to identify a plausible construction of the data that best supports their client’s win conditions. In other words, because the law professor’s Step 1 is less bound to the goal of achieving a specific real-world objective, the law professor has a lot more wiggle room on how to define the possible results at Step 6 of the legal method.
So Prof. Leiter was right in that the ability to “think like a lawyer” is not limited to practicing lawyers. Unfortunately for Prof. Leiter, he was not himself thinking like a lawyer when he chose to respond to the e-mailer’s question by being a sesquipedalian bully, instead of by following the legal method and constructing an actual argument.