Do you “think like a lawyer”?

27 de agosto de 2017

A recent Law Schooled podcast included a section where the three student podcasters discussed the consequences of learning to “think like a lawyer”.  One student made an interesting point about being able to use this amorphous phrase as a justification for teaching methodologies.

Short Clip from the Podcast that Inspired this post:  “Think like a Lawyer”

All three students admitted to being clueless about what “think like a lawyer” meant, yet this is not the least bit surprising.  After looking into Reframing Legal Education’s “Wicked Problems” by Judith Wegner, it seems like professors and students generally do not agree on a single definition for “think like a lawyer”.  Here’s my take on this flurry of semantical, romantical fun.

The phrase “think like a lawyer” cannot and should not be defined.  It should be tossed out altogether, and goals should be clearly stated.

Some of the thoughts on what it means to “think like a lawyer” that both professors and students described in “Wicked Problems” do not overlap at all, and often they conflict to the point that when highlighted, they show a muck of a mess of a “Who’s on first? What’s on second?”

Really?  Should our legal education, and especially first year curriculum, be based on such an unstable, indefinable, yet absolutely powerful phrase?

THE PROCESS OF LEARNING TO “THINK LIKE A LAWYER”

(1) Students must learn to “think like a lawyer” in their first year of law school and often throughout the three years

(2) Faculty define what “think like a lawyer” means according to their individual views of what it means to “think like a lawyer”

(3) Faculty often do not agree with each other on what “think like a lawyer” means

(4) Students often learn different meanings of “think like a lawyer” leading to confusion and chaos

Um… Anyone else see a problem in this?

Law schools need to rethink whether “thinking like a lawyer” is a good theoretical framework upon which to teach students.  The phrase has gotten so out of control that one student in “Wicked Problems” defines “thinking like a lawyer” as “thinking on your own”.  (916).

Well, if that is the case, and we assume that the student was right, then we do not need law school if it’s just going to teach us to “think on our own.”  However, if this student was sorely mistaken about what it means to think like a lawyer, then the law school he attended did a poor job of clarifying what the phrase meant.  Either way, the complexities of teaching and learning how to “think like a lawyer” verge on the ridiculous if not tragic.

Digression with questions:  

  1. Do your schools hold conferences or forums discussing the meaning of what it means to “think like a lawyer”?
  2. Do you know what it means to “think like a lawyer”?
  3. Have you ever asked a professor (or hopefully multiple professors) what they think “think like a lawyer means”?
  4. Have you ever questioned your school’s use of this phrase as a justification for the first year curriculum (or the second or third for that matter)?

SURVEY SAYS…         

The Carnegie Foundation for the Advancement of Teaching’s study of legal education allowed for researchers to look into 16 representative American and Canadian law schools (1999-2000).  The research used focus groups and interviews to ask first year, advanced students, and professors the question, “what does it mean to ‘think like a lawyer?”

This is what the report said:

  1. “Recurrent use of questions that are gradually internalized”.
  2. “Structured forms of reasoning that become routine.”
  3. “New concepts of ‘knowing’ that integrate uncertainty at their root.”
  4. “Exposure to a limited universe of law and the legal system.”
  5. “Development of ‘legal literacy’ involving careful reading, mastery of vocabulary, and conventions for textural interpretation.”
  6. “Treating professional roles as a given, rather than exploring their depth.”
  7. “Exposure to professional norms to foster adaptation without confronting student views.” (894)

Later in the article, Wegner summarizes some of the main factors of “thinking like a lawyer” and inspires an important question:

“’Thinking like a lawyer demands that students engage in close reasoning and expectation of cases, opening the way for conversation about values associated with judicial decision, the legal system, lawyers’ obligations and individuals’ personal views.  Unfortunately, faculty members often seem to gloss over this complex set of concerns without acknowledging their significance and power and leave the impression that students’ values should be checked at the door (emphasis added).” (916)

QUESTIONS

1.  In this process of learning to think like a lawyer, should we start having an in-depth discussion with our professors on what they think the phrase means, and should they start to let us challenge that?

2.  Can we collectively, with our professors, find common ground on the meaning of “think like a lawyer” and then more clearly understand how to reach the goal through this process?

3.  Is it time for us to start undermining the assumption that “think like a lawyer” is a valid justification for the first year curriculum, as a result of seeing how it has become murky at best and tyrannical at worst?

4.  Can we replace “think like a lawyer” with clear goals for the first year, and then look into additional goals for second and third year so that our education allows for a targeted approach that understands that we develop as students year by year?

YOUR FINAL ANSWER PLEASE 

What does “think like a lawyer” mean to you?

…AND NO, YOU MAY NOT PHONE-A-FRIEND

Source:  Judith Welch Wegner, Reframing Legal Education’s “Wicked Problems”, 61 Rutgers L. Rev. 867 (2009)

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