How do law schools teach legal reasoning?

In My Humble Opinion
1

In an effort to combat personal ignorance, I decided to learn more about many types of law. On doing so, it shocked me how poorly schools used to teach this, given its importance. I am not a lawyer - absolutely do not think reading a little about law gives one the experience or wisdom of a lawyer, am much better at medical skills than the negotiation and focused skills a lawyer requires anyway. Still, it’s been interesting for me to read about different directions commonwealth countries have taken. The logic behind the decisions usually seem sound, and although the system is both slow, flawed and slightly dated, it has more to recommend it than I would have guessed. Also it is much less predictable.

Accordingly, I read an excellent text called Essential Lawyering Skills. In addition to a variety of approaches, it discusses the value of finding creative solutions. As an example, it discusses a union approaching a lawyer about a company deciding to close a factory in a small town since it only makes modest profits. The lawyer could fight for a degree of severance, or try to persuade a big company not to make that decision. But it goes into detail about steps a lawyer might take to sell that company to the workers, and some arguments which might reasonably appeal to a company to do that, in terms of taxes, PR interests of local stakeholders, selling fixed assets, etc.

Of course, this does not seem to happen much in practice for many reasons. But it’s an interesting thought experiment. I get the sense that law school teaches you to think in a focused way, the local law, important cases, argument and what esteemed judges thought.

Medical school and residency teach an enormous volume of information and skills. But not really how to run a business or creative counselling solutions. If law school is similar, much learning comes from mentoring on the job; but medical school might involve many more mentors than law school (?) and one still needs years of practice to gain proficiency.

So my question: how do law schools teach legal reasoning? Creative solutions? Are these very commonplace? Are these skills highly teachable?

2

Legal reasoning is taught in law schools from day one. Sort of. Law students read a lot of cases, that come to different conclusions, and practice adopting one argument and distinguishing another. It’s a funny way to learn torts and contracts. Legal writing classes are more relevant to day to day practice of law, as are legal clinics, and “lawyering” classes. (we even practiced client interviews)

We learned nothing about the business of practicing law. Maybe because it really varies depending on the type of practice you have. A family law practitioner has vastly different business considerations than a personal injury lawyer, for example. An associate at a big firm probably doesn’t have to concern him or her self with business issues at all, other than billing enough hours.

3

When I refer to legal reasoning, I do not mean “learning to think like a lawyer”, or legal analysis of cases. I’m trying to emphasize a creative and problem-solving approach. So I probably could have used a better phrase.

The book also emphasizes collaborative approaches. But traditional and hierarchical approaches can sometimes seem more commonplace than client-centred ones. If this is true, there might be good reasons for it.

4

Law schools don’t teach that. Learning to negotiate or to find creative solutions might be important to some jobs that some lawyers find themselves in but it is not law. Law school usually teaches things like the history of law, theories of law, legal analysis, legal argument, and other legal subjects.

I’ve said it before. Law school doesn’t teach you how to do your job once you get a job.

5

No, it is not law as such. In the example of the factory, the book gives examples of the laws which apply in this theoretical state. It says one could apply the laws to gain the workers appropriate severance, or to fight for further benefits. However, in terms of best meeting the actual client goals, one might offer the client a mix of legal options including some which are more innovative and involve complex skills like negotiation; but less law and interpretation. It seems these skills would be hard to learn and take time, wisdom and effort to apply. In medicine, professionalism is largely a balance between detachment and empathy. Perhaps the same is true of law.

6

In ‘Doctor at in the house’, Richard Gordon observed that patients were triaged by the hospital porters, who had vast experience: if a patient with a headache was sent to the dental area, they might have all their teeth taken out.

It’s why the English/Australian system has Barristers and Solicitors and Barristers Clerks and medical specialists. In this system, Barristers are notoriously unable to take a wide view, unless ‘taking a wide view’ is their specific speciality.

7

The problem with these comments, and I say them with respect, is that there is no single “lawyer job”.

  • There are lawyers in private practice, with a general practice.
  • There are lawyers in private practice who do nothing but go to court.
  • There are lawyers in private practice who do nothing but real estate, or mergers or acquisitions.
  • There are lawyers who are solo practitioners.
  • There are lawyers who work in firms with thousands of members.
  • There are lawyers who work as in-house counsel with private companies.
  • There are lawyers who are public defenders, employed by a public agency.
  • There are lawyers who prosecute criminal cases, as public employees.
  • There are lawyers who work in think tanks and advocacy groups, such as ACLU.
  • There are lawyers who do nothing but represent unions.
  • There are lawyers who do nothing but represent employers.
  • There are lawyers who work for legislatures, drafting laws.

What course can you take in law school to prepare you for “that job” as a lawyer? What does the prosecutor or public defender have in common in their job with the mergers and acquisitions lawyer? Or the sole practitioner in private practice with the legislative drafter? What course in law school will prepare all those lawyers for all those different jobs?

To take the OP’s example, in what way is negotiating for a better deal with the employer to keep the factory open “practising law”? Sure, a good labour lawyer, with excellent negotiating skills, could do that. But so too can a non-lawyer who specialises in labour disputes. You don’t need a legal ticket to be an amazing labour negotiator. (Some would argue that a non-lawyer may actually be better at negotiations like that.)

That’s why in Canada and many other commonwealth countries, you can’t just get your law degree, pass the bar and hang up your shingle. You have to do a year of articles, under the supervision of an experienced lawyer, to get at least some practical experience before you’re eligible to get your ticket. As part of the bar course, you are taught about more practical aspects of practising law. A law degree is not meant to be an automatic qualification to practise law.

In short, a law school degree is not, and never has been, meant to prepare you for practising law. It’s the starting point, to teach you the essentials of the law, but it’s only the beginning of prepping to be a lawyer,

8

There are many different types of doctor. Medical school is a starting point. Residency is more specialized but until in practice you do not know what you do not know. On four occasions, I have been in the back of a plane when a doctor was requested. In theory, any doctor has learned what is needed in a general situation, but one forgets what they do not use. As a generalist, I always quickly volunteered. After the problem was resolved, the ophthalmologist or surgeon might introduce themselves - they always hold back. In theory, all doctors learn the basics. No one thinks law schools can replace on the job learning. Should things be taught differently? In medicine, the answer is always yes - but what needs to be taught better depends entirely on who you ask.

Is creativity taught, in any form, in law school?

9

Define “creativity”, please?

10

I’m not sure I follow you completely. In law school you are first of all taught to apply the law. For example you need to be able to recognize specific torts, reason what the consequences are. That’s what is usually understood by legal reasoning.

Once you have sufficient understanding of what the legal rules actually are, you can become creative. You may either try to achieve novel solutions using the existing body of rules, or you may argue that existing rules should be changed for one reason or the other. Good teachers should stimulate students also to think creatively, but many students may already have a hard time simply understanding the law and don’t reach the level of creative thinking.

11

You call my comment a “problem” but then nothing you say contradicts what I said or say a why it’s a problem. I don’t imply that law school should do any of those things. I’m just responding to the OP’s apparent assumption that law schools aspire to do so. They don’t. I merely stated that fact.

12

I’m not sure exactly what the OP means by “legal reasoning.”

When he mentions this:

That strikes me more as describing decisions for the principals to make, rather than the lawyer. In many (most?) cases, a lawyer can help identify potential strategies, in terms of what is most likely to have certain outcomes. But once the client decides upon an approach, in many (most?) instances, the lawyer’s jobs is figuring out how to make that happen. It is not without reason that lawyers are (at times) described as whores or hired guns.

Lawyers need to learn how to research the law sufficiently to figure out what is permitted/prohibited. They need to learn to use language very precisely - both in drafting documents, and in interpreting law/documents drafted by others. Beyond that, you try to present the argument that is most likely to persuade whoever is in position to give what your client wants.

Of course, this is all a generalization. As noted above, licensed lawyers can be employed in any number of capacities. And my experience is limited to the US system.

I’ll briefly repeat a story I’ve mentioned before. In law school, I took a “Negotiations” class. Each week, teams of 2 students would engage in mock negotiations w/ another team of 2. Sports team vs athlete’s agent, etc. You wanted to maximize your side’s points based on the scenario; you did not know what the other side’s points were.

At one point, there was discussion as to what to do if you had maximized your party’s interests, but still held some cards which you could give to the opponent at no cost to you. Take a wild guess - out of 36 students, how many believed, “Of course, you give them to the other side. The best deal is the one that maximizes the outcome for BOTH sides.”

1 - me. Every other student believed the optimal outcome was the one that maximized your client’s outcome, and screwed the opponent as much as possible. The best outcome ended up w/ the greatest DIFFERENCE between the 2..

Just one datapoint, but one reason I’m not thrilled w/ the arena in which I’ve been employed these past 35 years.

13

Then i misunderstood your comment.

I apologise.

14

Right. It depends on the scope of your retainer. If the client has hired you to try to work out a deal where the plant won’t get closed, that’s one thing. But if the client is doing all the negotiations with the company and come to you, saying “This is the deal we’ve worked out”, then it’s your job to imoplement that deal by means of drafting contracts. If the client never consults you until after they’ve struck the deal, that’s the retainer you get.

That’s why I said negotiating with the company is not really practising law, because anyone can do that on behalf of the employees. Maybe having a lawyer on that team of negotiators would be helpful, but that doesn’t mean the lawyer is practising law.

15

The book gave the impression that the best lawyers help make clients fully aware of all the productive options. In this hypothetical, the workers came to the lawyers concerned about a plant closure, thinking purely of legal options. Through sensitive questioning, the lawyer found the real goals of the client. It sounded, to me, quite different from my expectations. And these things are so tough to teach and so removed from law that I was surprised. Much learning is reduced when reduced to specific spheres like law or business or one type of science or medicine. Creativity is hard to define. Perhaps it is what is left after you remove everything normally expected?

16

Well, my reaction is that a good lawyer always asks a client what they want to get out of a situation.

Without going into specifics, I’ve had cases where the client has asked for a very broad remedy, that would be difficult to achieve, and I’ve asked, “What exactly is the problem you want to address?” and, their answer has resulted in a much more manageable solution, easier to achieve than what the client came in asking for.

There’s also collaborative family law, which uses interest-based negotiation practices, and an agreement not to go to court. That approach can get the parties working together in ways that the litigation model doesn’t achieve. And, the retainers provide that if the collaborative approach doesn’t solve the problem, both parties will have to get different lawyers, to avoid any suggestion that the initial lawyers are taking advantage of information they gained through the collaborative approach.

There’s also alternative dispute resolution mechanisms, such as mediation and arbitration. Mediation often is based on interest-based negotiations, not position-based negotiations, namely, what interest does each party hope to achieve to end this dispute?

I would say that good lawyers are creative lawyers.

17

That’s what My Cousin Vinny is for.

Stranger

18

Most trial lawyers I know love that movie. They say it gets most things fairly right. The only real problem is how he gets away with lying about his identity to the judge.

I suspect that in many a small town court like that, he wouldn’t have had to lie. Many rural court judges don’t really care whether capital defendants get effective counsel.

19

We’ve got a talkback-radio lawyer on every week, and every week that is a question he puts (in one form or another) to at least one of the callers, who call up asking questions like ‘Can I throw snow onto a neighbors driveway’, and ‘If a neighbor throws snow onto my driveway, can I shoot them?’ [EXAMPLES ONLY: I LIVE IN A CITY WITHOUT SNOW].

20

Not just trial lawyers: The American Bar Association counts My Cousin Vinny as #3 on its “Top 25 Greatest Legal Movies”, and well it should for the movie highlights both the things you should never do (“Don’t talk back to the judge! Quit while you’re ahead…or quit while you’re slightly behind.”) as well as how to do things right (discredit a witness, qualify an expert, present contradictory testimony).

It’s a way better movie than 12 Angry Men (which should have been mistrialed for Henry Fonda influencing the journey by doing his own independent research outside of the evidence and testimony presented in court) or Runaway Jury, which is basically a fantasy tutorial on jury tampering. Committing fraud by lying to the judge about his identity is probably a no-no, but it’s also probably going to be Rudy Giuliani’s next legal stratagem.

Stranger