August 24, 2014

Thinking Like A Lawyer

Attorney Scott Greenfield, author of the blog Simple Justice, has an interesting post (here) about what it means to "think like a lawyer." Quoting from the Paper Chase, he talks about how we can get there when we are starting out with our "heads full of mush." He sees it as developing the ability to sift through the volumes of information to pick out the gems, the particular items of factual value, and to be cold-blooded about it, to put aside our own sense of right and wrong, or the need to do justice, in order to see facts and law clearly and without blinders. This is all true, but it requires just a bit more.

Greenfield says, in part,
Thinking like a lawyer, at its most basic, is taking a myriad of facts, identifying the salient facts, spotting the issue and analyzing the law as it applies to the issue.  Saying this is easy. Doing it is not. . . .

When a client explains his situation to a lawyer, and the lawyer parses the dull from the shiny, the significant from the background, in the facts, conflicts often arise, just as they do in the comments here.  To the lawyer, only the facts that affect the outcome matter. To the client, every detail matters.  The lawyer thinks in terms of what makes the client’s cause more or less likely to prevail. 
In essence, Greenfield is arguing that lawyers need to separate those facts that matter -- i.e., help support compelling legal arguments or dooms the case -- from the surrounding noise. He correctly points out that our clients cannot make these distinctions, and that it is imperative that we cull out those that really matter, that can be applied to propel or defeat arguments.

This is certainly true, but it's too obvious. It suggests that merely knowing the law, to the extent that the law is something we can "know," as opposed to our ability to predict how a particular judge is likely to respond to certain fact patterns or arguments, is important, and that we be smart enough to figure out which facts matter, and which don't.

My clients often come to me with complicated stories that involve various parties and complaints about how they were treated or they way in which they were aggrieved. Greenfield is entirely correct that many of these facts and feelings are of great significance to the client but of little import to the case. How the lawyer handles this is less a matter of "thinking like a lawyer" and more a question of good client management.

Thus, Greenfield is not wrong when he says,
Lawyers don’t let shiny details, no matter how interesting or personally disturbing, impair their detached vision.  They don’t let their personal interests or issues interfere with their obligations to the clients. Thinking like a lawyer demands a harsh dedication to reality, a self-sacrifice of ones own bias. . . .

Most lawyers struggle with accomplishing the goal of thinking like a lawyer.  Most non-lawyers find it not only impossible to do, but can’t begin to conceive of why all the shiny things that strike them as interesting are of utterly no significance.
But, for me, thinking like a lawyer means something slightly differently. It's also about how to recast facts, how to reframe issues. How to see or present words and ideas literally in order to give them a different meaning, or alter the weight given by a jury. In other words, there's the truth and then there's the appearance of the truth.

As a civil litigator who almost always represents plaintiffs (I am a civil rights attorney, after all), I carry the burden of proof. My job is to sell my case, to persuade my adversary, the judge, and eventually a jury, that my client's version of events is the correct one, that he or she was wronged, and that he or she was injured in some sort of way.

That means more than simply identifying the facts that matter and weeding out the shiny unimportant ones, it also requires an ability to convince other that evidence that at first glance looks like X, actually means Y. To do this requires revising how you look at facts, how you can challenge their reliability, their meaning, the inferences to be drawn.

You must first figure out what the law allows or requires. As Greenfield points out, that is often easier said than done. I am often asked by clients whether something is legal. What they really mean is, what will happen if I sue or am sued, will I win or lose, and how much money are we talking about. While the law as written may be clear, how courts are likely to apply the law to your fact pattern often requires a lot of research and more than a little estimating. It should come as no surprise that I have won plenty of arguments I had expected to lose, and lost ones I anticipated winning.

But to think like a lawyer, you have to be able to identify and break down fact patterns as they fit in and around the law. Understand the weaknesses of your case (or, as I heard Judge Reena Raggi say many years ago to a criminal defense attorney, "Don't fall in love with your argument!"), and plan accordingly.

Greenfield is right that this is a difficult task. And he is right that it requires a ruthless logic. What I take that to mean is that you have to maintain your clinical objectivity and emotional detachment. You must try to maintain a perspective that simultaneously accounts for the short, mid and long term. Doing so may lead you to unpleasant realizations, but this is precisely what our job entails. To do otherwise would work a disservice to your client.

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