Thursday, 19 May 2005

Thoughts on Thinking Like a Lawyer From a Soon to Be 1L

Definition of “Thinking Like a Lawyer”

“…the ability to analyze the interplay of law and fact.” - Professor Scott J. Burnham, University of Montana School of Law

Some things I’ve read regarding law school preparation states that a change of thinking is necessary in order to be a successful law student and lawyer. Broken down to its simplest form, this ‘change of thinking’ seems to mean in large part the idea of getting used to the so called Socratic method. Some have argued that there is no true secret to ‘thinking like a lawyer’, rather only two types of thinking exist both in and out of the legal world, namely “clear thinking and confusion.”

Proper Mindset

However in order to prepare my mind for the rigors of law school, I have looked at some on how to do so. Here are a couple of tips from the Law Nerds website.

Accept Ambiguity
There is an exception for every rule. This makes sense. The law is inherently flexible because of the inability to predict every possible situation. There are innumerable examples of this. Take a look at a recent story of a college professor who was fired for joining a group that advocates Nazism and white supremacy. Is that a violation of his First Amendment right to assembly? Certainly the Constitution is explicit about this right, but is a right as fundamental as the right to assembly absolute? If exceptions can be made where do you begin and end? A lawyer has to prepare him or herself to delve into these gray areas.

Avoid emotional attachment to a position
Since we are talking about Nazism, how do you feel about a Nazi group, after securing any requisite permits, that advocates white separatism in a Jewish neighborhood? Could you or I fight just as vigorously for their right to free speech as any historically underrepresented minority? Or how about Hollywood’s new ‘safe’ villain Big Business? Could you make an argument for their property rights in a small town that is trying to keep them from building on property already owned by the company? Perhaps these are they types of questions a law professor will ask while in the throws of the Socratic Method. A law student needs to be able to apply the law in different, evolving situations.

Legal Reasoning

Law Nerds defines analysis as “the simple act of proving each element of a rule to be true or false.”

Here is a very simple example:

Facts: At 12 noon, Joe forces open the door of a houseboat and enters the cabin. He takes the houseboat's expensive navigation equipment, which he plans to sell at a pawnshop the next day.

Rules: In order to be convicted of Common Law Burglary, the following conditions must be met: One would have to break and enter into a residence at night with the intent of committing a felony.

Analysis: Common Law burglary is not satisfied because the action was committed at night.


Granted this is a very simple example above, and I’m sure that there is quite a bit more to the ‘proper’ legal mind set. But hopefully understanding some of these basic principles before hand should serve me well in law school.

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