Volume 3, Number 2 • April 2005


Thinking Like a Lawyer

By Cheryl Tennant Humes

Anyone who has ever attended law school is familiar with the maxim that law school teaches students “how to think like a lawyer.” This statement is usually accompanied by an attendant warning that once one does learn how to think like a lawyer it is virtually impossible to turn that type of thinking off on those occasions when one would rather think like a normal human being. Thinking like a lawyer has meant that, at least for me, instant analyses of everyday situations for potential liability and possible causes of action to litigate leap involuntarily and somewhat distressingly to mind. (For instance, a few months into law school I attended an event at a well-known theater in Philadelphia where a silk rope used to cordon off certain sections of the balcony was unhooked and lying loose. Across the stairs! Instinctively, I ran through the standard checklist of tort elements.) This phenomenon is not as bothersome as one might expect, because “thinking like a lawyer” can become a useful way of analyzing any problems or issues that may arise.

Recently while attending a public legislative hearing, I became aware of having added another type of “lawyerly” analysis in addition to the traditional sort described above. In March of this year, nine legislators from the Pennsylvania House of Representatives introduced a bill that would allow intelligent design to be taught alongside the theory of evolution in public school science classes across the state, a controversial and currently heavily debated issue across the nation. During the hearing held by the House Subcommittee on Education, lawyers, scientists, and philosophy professors on both sides presented testimony.

The testimony of the expert advocates of intelligent design focused on how ID meets the criteria of a legitimate scientific theory. They stated their belief that Darwinists’ opposition to ID is unfair and prejudicial to students who they believe are being deprived of exposure to a valid competing theory. On the other hand, their opponents contend that ID does not meet the requirements of a valid theory of science and that the proposed bill is a disguised and unconstitutional attempt to inject religion into the science curriculum.

As the hearing progressed, I wondered how I might apply my recently acquired skills as a budding laywer if I were directly involved, whether as someone giving testimony for one side or the other or as one of several legislators who were asking questions and guiding the discussion. I had the usual inclination to “think like a lawyer” in the traditional sense, of course. That is, as I listened, I found myself weighing the merits of the arguments, the relative credibility of the presenters based on their background credentials and their demeanor, and assessing who had the stronger argument. Not long ago this is probably where my analysis would have stopped; however, I also found myself contemplating other factors and dynamics of the dispute.

Applying mediation “thinking”—which occurred as involuntarily as “thinking like a lawyer” due to my enrollment in a skills class on mediation—it was easy for me to start identifying many explicit and implicit underlying issues of each side. Superficially, the position of each side is clear—one wants the bill to go forward so ID can be taught as science, and the other doesn’t; however, each of these outcomes is win/lose and will be entirely unsatisfactory to one of the contending groups. Is it possible that there are other options available that would avoid this all-or-nothing” result? What are the underlying interests of each side? Is compromise possible when the controversy is as emotionally charged as ID? (I understand that this issue is complicated and involves many underlying interests, both stated and unstated, and I will not go into a full analysis of all of the concerns here.)

I found myself imagining how the meeting would have proceeded had the participants, particularly the lawyers on each side or, even better, the legislators who were overseeing the hearing, applied some principles of mediation. Arguably, a legislative hearing is a very favorable forum in which to use mediation principles. The underlying interests of each side would be identified and clarified. Other ideas would be offered and options solicited for later evaluation.

Interestingly, a compromise had been offered by one side that slipped by unnoticed, or at least unremarked upon, by the other side and by the committee members. The ACLU representative stated that they had no objection to the teaching of intelligent design in public school, as long as it was taught in the context of a history or social studies class. The ACLU was recognizing and accommodating one of the interests of the opposition, namely their desire to expose public school students to intelligent design. They were taking a step toward a creative solution by opening the door to a possible compromise that, while it may not by fully satisfying to each group, could at least be the beginning of a discussion of other options. Unfortunately, there is no way to know if this proposal would have been considered, let alone accepted, by the supporters of ID. The suggestion went no further than the original statement by the ACLU.

Would a mediation approach diminish the original “lawyerly” analysis? By thinking like a mediator I was not thinking any less like a lawyer, but arguably more so. In fact, an examination of the strengths and weaknesses of both sides of a dispute and the legal issues raised by the facts are necessary components to mediation. Incorporating mediation methods in discussing this dispute would not have weakened the positions of either side.

Cheryl Tennant Humes is a student at Widener University School of Law in Harrisburg, Pennsylvania, and works as a legal intern for Attorney William G. Schwab & Associates in Carbon County, Pennsylvania.

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