Sunday, October 17, 2004
Excellent post on "thinking like a lawyer" by Scheherazade. "Stay of Execution" has become a blog about preserving her humanity in the face of her legal training, something that I think all thoughtful lawyers struggle with. The tagline for "Outside Counsel" used to be Edmund Burke's observation that, "law sharpens the mind by narrowing it," but the truth is more complicated than that. Law is a toolbox-- a set of skills that can be applied to solving problems, and like any good craftsman a good lawyer tries to use the right tool for the job. Law school gives us some of these tools, but it is important to be sure that we acquire more specialized tools as our practices become more specialized-- just as it is important to recognize that sometimes our basic tools can and should be upgraded.
For example, like a lot of lawyers-- and almost all judges-- I used to believe that the skills necessary to be a competent neutral were essentially the same skills possessed by an advocate. It was not until I underwent mediator training that I realized how mistaken I was. Some of the things that Scheherazade describes as lawyer skills are the same things that neutrals use: breaking complicated questions down into parts, to use one of her examples, or the ability to forecast probable outcomes, but there are a number of different tools as well. Among the things that law school is poor at providing training in is listening-- and this is central to what a neutral does. Once a new skill is acquired, however, it is often pleasantly surprising how often that skill can be applied successfully to problems that you've been dealing with one way for years. Listening to a client can and should be something that a good lawyer does to get to the best outcome. Often we rush into a matter without paying attention to what is really being said by our clients about what they want and what they need-- and that is a mistake. It is sometimes a mistake that the client encourages (beware when a client starts talking about "the principle of the thing"-- always a warning sign) but regardless of whose mistake it is, it is the lawyer that is in the best position to correct it before it gets out of control. I'm afraid to go back over this post to count the cliches, but I'll add one more: when the only tool you have is a hammer, every problem looks like a nail.
It is easy to take Burke's position, and think of what we do as lawyers-- or even as litigators-- as the one dimensional, technocratic application of a rigidly defined set of rules, but that's not what the good lawyers I know do. When this work is the most gratifying it is creative and dynamic. One of the things I love about being a lawyer is that my learning plateau never seems to crest. There aren't a lot of jobs about which that can be said, and it is an aspect of our glamour profession that is often overlooked.
For example, like a lot of lawyers-- and almost all judges-- I used to believe that the skills necessary to be a competent neutral were essentially the same skills possessed by an advocate. It was not until I underwent mediator training that I realized how mistaken I was. Some of the things that Scheherazade describes as lawyer skills are the same things that neutrals use: breaking complicated questions down into parts, to use one of her examples, or the ability to forecast probable outcomes, but there are a number of different tools as well. Among the things that law school is poor at providing training in is listening-- and this is central to what a neutral does. Once a new skill is acquired, however, it is often pleasantly surprising how often that skill can be applied successfully to problems that you've been dealing with one way for years. Listening to a client can and should be something that a good lawyer does to get to the best outcome. Often we rush into a matter without paying attention to what is really being said by our clients about what they want and what they need-- and that is a mistake. It is sometimes a mistake that the client encourages (beware when a client starts talking about "the principle of the thing"-- always a warning sign) but regardless of whose mistake it is, it is the lawyer that is in the best position to correct it before it gets out of control. I'm afraid to go back over this post to count the cliches, but I'll add one more: when the only tool you have is a hammer, every problem looks like a nail.
It is easy to take Burke's position, and think of what we do as lawyers-- or even as litigators-- as the one dimensional, technocratic application of a rigidly defined set of rules, but that's not what the good lawyers I know do. When this work is the most gratifying it is creative and dynamic. One of the things I love about being a lawyer is that my learning plateau never seems to crest. There aren't a lot of jobs about which that can be said, and it is an aspect of our glamour profession that is often overlooked.
// posted by Bill @ 1:59 PM 
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