Teaching Law

Tuesday, 12 June 2012

Thinking Like a Lawyer – the Good the Bad and the Ugly

First year law students are invariably regaled with the mantra of learning to think like a lawyer: that law school is all about developing this skill.  As some have identified, 'thinking like a lawyer' is a nebulous concept at best, or at worst, a 'self-aggrandising sham...to justify the existence of a...special lawyer class'. 

There is however a mounting body of evidence to show that the culture of the law, including the way that lawyers think, is linked to stress experienced by law students and legal practitioners alike. (For example, see here and here.) 
While this creates issues for the sustainability of the legal profession as it sees an exodus of early- and mid-career practitioners, and women in particular, I believe it also takes a toll on the personal lives and relationships of lawyers.

Thinking Like a Lawyer at Work

I did not question the way I thought until I worked in community legal services alongside social workers.  I was shocked to learn that there was another way of doing things.  This stood me in good stead as I learned to work in a Native Title Representative Body, adopting different ways of thinking.  However talking to other lawyers we would revert to our comfortable legal discourse and thinking like a lawyer. 
Working with legal academics is akin to my years in the profession.  We behave in similar ways and address problems in a similar way.  I have observed though that engaging with academics from other disciplines has sometimes involved a degree of suspicion on their part and some observations about our ‘peculiar’ modes of thought: argumentative, adversarial, questioning, rule-based and obsessed with detail.  (I remain unconvinced however by allegations of conservatism.) 
These observations are pertinent, and cause me to reflect on the way in which others perceive me – including my students.  Is the way in which I constantly question deemed to be an argumentative and adversarial (and therefore undesirable) mode of personal engagement? This question I think is relevant to legal education especially bearing in mind the role of emotions in learning.
While there are many who have questioned the personal in terms of the culture of the profession (see for example here; here; and here) and the academy (see for example here and here).  I also think that there is an additional dimension of ‘thinking like a lawyer’ – its impact on the personal in a lawyer’s personal life.

Thinking Like a Lawyer at Home

I have shared my home life with a litigation lawyer for over 20 years.  We are comfortable both talking law and talking legally.  (‘You have my undertaking to fix the shelves on the weekend.’)  Our approaches to relationships, life and parenting probably take a distinctively legal flavour.  (Upon witnessing an ill-thought out U-turn, three year old says: ‘mummy isn’t that unlawful?’  The nine-year old in a first attempt at umpiring an under-eight hockey match, blows the first infringement and makes the bewildered five-year old player walk.  The only conclusion I can draw is that our children are lawyers also.)
Explaining to my students that the law will take your brain apart and repackage it so you see the world differently is, I believe, no exaggeration. There isn’t a television program that can be watched at our place without discussion of the legal implications or deficits in argument from a legal perspective. (Watching a nature documentary: ‘Look at the whales frolicking in the Great Barrier Reef!’ Hmmm. I wonder which agencies approve a licence to get that close to those whales?)
I was recently talking with a friend from the profession about their new relationship. To a casual observer, we would probably have sounded as though we were discussing a legal matter in terms of our language and tone. It transpired that my friend had been using this language in discussing these personal issues with their new partner. It dawned on me that the tenor of this language could have seemed somewhat threatening to a non-lawyer – they were not speaking in a language that their new partner could understand. Instead of occurring in the professional arena though (as in the cross-disciplinary university context) this could affect the non-lawyer listener on a much more personal and emotional level.
In addition to the way in which we use language and problem-solve in every day life, there are other flow-on effects from our work. The first is the impact of our ongoing risk-assessment based on our experiences in the law. (I’ve met many, many lawyers who will not wear new clothes without washing them, as a consequence of reading Grant v Australian Knitting Mills.) Secondly, for those of us who see the worst in human nature through criminal and family law practice, there is potentially associated emotional trauma.  Inevitably, this impacts upon one’s personal life.

What are we doing about it?

Since the landmark ‘Courting the Blues’ Report in 2009, there has been a lot of work in the academy and in the profession to develop and implement strategies to transform the way we think about lawyering and legal education. I see this as a multi-layered and contemporaneous transformative process.
We need to develop the capacity in our students for resilience and reflective practice. At the same time, we need to promote cultural change in the profession to accept diversity and more collaborative modes of practice and working arrangements. The lynchpin in this is the legal academy. It is our job to undertake the research to support such change in the profession and in legal education; and to educate the lawyers of the future in a way that will facilitate emotional literacy and self-management strategies to minimise the down-side of thinking like a lawyer.

Post Script

There has been some interesting discussion on Twitter in response to this post - see here

Image By Danieljamesbarton (Own work) [CC-BY-3.0 (http://creativecommons.org/licenses/by/3.0)], via Wikimedia Commons


  1. Great post, has me thinking about what I can do to support the emotional 'I have to live in my own head and with other people' side of legal studies in high schools. Collaborative practice in schools is where it should all begin!

    I particularly like this sentence: 'about our ‘peculiar’ modes of thought: argumentative, adversarial, questioning, rule-based and obsessed with detail.' - as a high school teacher who is working with lawyers I'm both daunted, in awe, but mostly grateful for your peculiar modes of thought - currently pondering which modes of thought I'd include if I wrote a similar sentence about high school teachers.

    1. Thanks Nik for this comment. It's always interesting to work with legal studies teachers who understand a lot of law but I suspect, as you imply, bring different modes of thought to the table.

  2. Great post, Kat. Yeah, I think like a lawyer too, but I'm not married to one, so he's frequently befuddled by the strange way I look at the world. However, I should say that one of the things he liked about me at the first was that I didn't "talk like a lawyer." Perhaps that's lucky. He has picked up legal snippets, though, over the years - "misleading or deceptive" is one... though he says, "Where's that from?" (a question no lawyer would ask).

    1. Thank you Legal Eagle. How interesting that your partner has internalised lawyer-speak... I'm not sure if that is a good thing or not!

  3. I recall an occasion when my son was 9 years old - his response to my complaint about his untidy room: "Well Dad, he who comes to equity must come with clean hands'.

    He also drew up an indenture for a pocket money arrangement.

    Now 23 years old, he studies visual arts, not law.

    1. That is a lovely story. Thank you for sharing it Kris.

  4. Listening to ABC Melbourne on the way home from a Castan Centre event tonight Lindy Burns had Gus Nossal, lawyer Bill O'Shea & Shrink, Steve Ellen on.

    O'Shea made the obvious point that lawyers fundamentally think of time in terms of billing hours (not a view that Einstein or my six year old grand-daughter would have come up with, I might add) and that they therefore have no use for Shrinks. It seems that, according to the Shrink, they accordingly spend more time getting depressed, and less time sorting out their real problems, than the remainder of the human population.

    I have known a handful of sane lawyers over the years. One even had a really nice dog called Bruce, and refused to work more than 3 days a week (he was very, very bright), which was suggestive of real human worth, I reckon.

    1. Some very interesting observations Rod! I actually thought in six minute units for the first time in primary school... So it seems that I was always going to become a lawyer.

      I think perhaps we should all aspire to be more like Bruce's owner and resolve both the O'Shea and the Shrink presumptions.

  5. Hi Kate -- good thoughts. You might also find this interesting.