Thinking Like a Lawyer

This is a phrase you will hear many times in law school. What you likely won’t hear is just what “thinking like a lawyer” actually means.

Partly this is because thinking like a lawyer isn’t an “it”; it is instead a way of, well, thinking. That’s a bit harder to convey—certainly while your professor drones on about case such-and-so. Yet learning how to think like a lawyer is crucial not only to your success in law school (and in your career)—it is vitally important in the LSAT and in your applications to law school…and thus to your getting into the right law school in the first place.

If thinking like a lawyer is so important—and it is—and if it’s something that would be awful handy to have in mind as you begin to actually think like a lawyer…then why doesn’t anyone define it? Worse, why do some obfuscate and denigrate the very thing that thinking like lawyer represents? One giver of advice actually goes so far as to state: “There is no such thing as thinking like a lawyer.” Well, if so, I suspect there will be quite a long line of clients who might be interested in refunds. In other words: poppycock. There very much is such a thing, and it can be defined. Indeed, if you are to succeed, not only must it be defined, it must be absorbed.

Okay, then: Thinking like a lawyer is the art of logical precision, and the ability to express that logic, precisely.

First, this is an art. The best lawyers are artists. They draw a picture for a client or a jury, and in that picture they paint the facts and the law in such a way that the outcome is one favorable to their side. In your applications to law school, the “side” is you. It is the artistry with which you craft your statements that might make the difference, to change that Rejection into an Acceptance, for you.

Second, it is about logic. While this might seem to conflict with “art,” in fact this is one of the reasons thinking like a lawyer is so confusing (at first) and important (once mastered): the artistry is in the ability not just to know logic, but to know how to use it. So, our artist-lawyer doesn’t just twist the facts or the law, but instead knows which law is applicable (and favorable), and which facts most strongly support a favorable conclusion under that legal doctrine—all the while standing ready to distinguish the other side’s claims under other laws or facts.

To “distinguish the other side’s claims” has a special meaning in the law: it’s the ability to show how the other side’s claims cannot (or should not) be supported. In other words, a lawyer knows not only why their side should win, but also why the other side should not. Crucially, the law is not about mythical theories; it is about two sides in conflict, both of whom want the opposite of what the other wants.

We might think that mere “argument” wins in court, but this is not (usually) the case. What wins is logic. That logic is based (a) in the facts of the case, and (b) in light of the law. Importantly, this very same standard applies in law practice, in law school, in applications to law school, and (as to logic especially) in the LSAT. In your applications, “the law” is the reality from the law school’s perspective—that is much of what this book is about.

Third is precision. This seems simple, but becomes dastardly complex. It might, in fact, be one reason you find this book annoying. Either way, let’s play with this, shall we?

Let’s say, for example, that your roommate has become a bit too pesky—shocking, yes?—perhaps by early-morning rowdiness, the taking of one Twinkie too many, and never returning your favorite DVDs. In an attempt to resolve this simmering dispute—which involved at one point the holding hostage, over an open flame, of a certain iPod—the powers that be mandate that you set an agreement in place, and “settle this, once and for all.”

Okay. You would like for your roommate to be less intrusive, to leave your Twinkies alone, and to return your DVDs. Assuming explosives or restraining orders are out of the question, how would you craft a statement (which in the law might be called an “agreement” or a “contract”) to accomplish that? Not just how, but how precisely?

You must cover every possible intrusion (and you must define “intrusion” so that everyone knows what it means), and you must not cover anything that is either not an intrusion, or would be a protected intrusion. Is coming in at 3:30 a.m. from the hospital different than coming in with an, um, “guest”? Is slinking into bed different than mixing a quick margarita and flipping a fast stack of flapjacks?

A lawyer could spend ten pages—no kidding—on defining what constitutes “intrusion,” a “protected” intrusion, intrusion by whom, when, where, how, and so on. And this is not “made up”: it is based on what a real-world person would think “intrusion” is. Thus the infamous hair-splitting on what the meaning of “is” is. The joke? To an attorney, this is not a joke. Sometimes there is a difference. And lawyers and the law are all about the “sometimes.”

How many Twinkie issues are out there? Must they be labeled? What if they’re already opened? What if they’re old? Or offered to your other roommate? How about if they’re in the trash? Near the trash? What if they’re replaced? Within how long?

And the DVDs. Goodness: What if, what if, what if.

This is just for one side! We’ve not even gotten to your roommate’s complaints. (Let’s just hope they’re on paper.)

The last part of thinking like a lawyer is putting that logical precision into words. Often, every word carries its own dictionary of meaning. Almost as often, in the law a word does not mean quite the same thing that it means to a non-lawyer.

It’s not so easy, yes? But it is fun. Every time you think you have it—you’ll think of some exception or quirk that doesn’t quite fit. Roommate does this; roommate doesn’t do that. Smoking might be intrusive (or not), but how about humming? Oh, yes, that too. Okay, what about typing on a keyboard? How loud? For how long? When?

And on it goes.

Lawyers love nuance. And they love to play with nuance in meaning…often nuance that others would miss. Yet this is done with a purpose—a legal purpose: Is there a difference? If there is, what is that difference? Is it intended? Is it potentially harmful? And on and on and on.

This is what thinking like a lawyer is…it’s what it entails. It is a process of thinking that is expansive (because considering all options is vital), concise (because words create ambiguity), and precise (because every aspect must be nailed down). Why? Because that is the essence of the law. It is also a crucial part of the awesome role of the attorney. And it is fun! If you agree, chances are you will do well in law school, and in the law.

If in life you prefer “one, two, three,” you might find this all quite frustrating. If instead you’re the type to ask “Why three?”, “What about ‘one-point-five’?”, and “I wonder if it should be ‘A,’ ‘B,’ ‘C’ instead?”…you will love the law. And, chances are, the law will love you back.

Why this section? As you read on, you will see this book modeling (or attempting to model) this art of thinking like a lawyer. If you embrace it—if you like it—the application process will be a better one (quite likely with a better result), your actual law school experience (and exams) will be better, and your career (read: money) will be as well.

This is from the preliminary chapter, “Getting Ready,” on pages 3-6.