October 08, 2020 Advance Sheet

The Narrowing of the Legal Mind

Narrow thinking and narrow-thinking lawyers are a grave danger to the profession.

Robert E. Shapiro

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Approaching the end of her freshman year, a college student called home to her parents, a tone of considerable desperation in her voice. “I don’t know what to do,” she said. “I’m not ‘pre’ anything.” Pressed for an explanation, she responded: “All my friends are ‘pre’-something, you know, pre-business, pre-med, pre-nursing, pre-law. I have no idea what I want to do and don’t know how to choose.” Her parents congratulated her on the breadth of her interests. Exasperated, and having let pass enough time for a virtual eye roll, she hung up, presumably to mull over her selection of an undergraduate major without the guidance of her family, let alone any specific career choice.

In our world, the imperative to know where one is headed upon graduation from college could hardly be greater. With the looming need to make a decent living, college students are increasingly pressured to decide early on what to do with their degrees. Indeed, the degrees themselves seem increasingly to be valued, or not, in terms of what future success they ensure in securing a position, if not by the income any such employment will offer. Much of this “pre” culture makes eminent good sense. We hardly needed the pandemic to remind us of the need for university graduates to get a good job. And it can hardly be denied that undergraduate organic chemistry, for example, is an essential, if daunting, prerequisite to matriculation in medical school. So, too, courses in marketing, finance, and accounting are good preparation for those intending to enter the moneymaking world directly.

But what, when all is said and done, is pre-law? Almost unheard of a generation ago, it has become a regular feature of the résumés of young lawyers who tout this major or field of concentration as proof of their commitment and readiness to become lifetime practitioners in the profession. But does the idea even make any sense?

Illustration by Dave Klug

Illustration by Dave Klug

What Is Pre-Law?

What exactly should a concentration in “pre-law” comprise? What should a young person know or know how to do in preparing to become a lawyer? It is difficult to say. Public speaking or writing, or their more effete godparent, rhetoric? A good start. Not for nothing, perhaps, was the brilliant John Quincy Adams, a noted lawyer and the son of one, as well as a later secretary of state, and sixth president of the United States, also a professor of rhetoric for a time at Harvard. Great oral and written communication skills are certainly the mark of a fine lawyer. But does anyone teach, let alone study, rhetoric anymore, given that the term is most usually connected with the modifier “empty”? As for public speaking and writing, they don’t seem the province of any one department or academic discipline, and barely even grist for an individual course. There’s the ever popular “mock trial,” which allows students to get some experience with a courtroom, but that’s a course, not a major, certainly. What about logic? This might carry a student over to the philosophy department, but the logic on offer there hardly seems of the same character as what a lawyer uses, which is probably better left to the law schools anyway. And epistemology or metaphysics, not so much.

The usual default is to political science and government, particularly American government. There the emphasis is on lawmaking and law-deciding within a specific political context, maybe with a historical theme. Yet, other than the knowledge it might provide of the Constitution and what’s been held by the U.S. Supreme Court over the years, it is not easy to see the connection between this course of study and being a lawyer. It might offer a little bit of a leg up for one or two courses in law school. For the practice of law? Not so much. Few practicing lawyers look to the separation of powers as their daily bread and butter, or study, let alone rest their careers on, the principles or history of constitutional law. The contrast with organic chemistry, which is the foundation of so much a doctor learns, could not be more stark. The study of American government seems hardly necessary to the practice of law, except in a very general way, and has only the most remote connection to what’s learned in law school or done in the profession.

What should one know beforehand for a life in the law? What’s the law about? “The law wishes to be the discovery of what is,” proclaimed one ancient philosopher. In simpler terms, the law concerns the whole of the society we live in, how one lives one’s life in that world, what social and political interaction should be like, how we understand one another and ourselves. It’s a kind of anti-Seinfeld, about everything, our answer to all the challenges of our practical world. It seeks solutions to the problems that arise in all those contexts at once, finding rules of behavior based on our fundamental ideas, to say what is and should be, now and in the future. If medicine focuses on health, and business on wealth, law concerns both those things too, but in a larger context because it considers everything else at the same time as well. Indeed, it is difficult to think of any subject matter in our society not in some way touched upon by the law. Science? Think patents or health care legislation. Literature? Copyrights and, for its subject matter, domestic relations, wills, and property claims. Psychology and sociology? Criminal law. Law in some way addresses and depends on everything around us.

Note, too, that there is an implication of failure in that old philosophic nostrum. The law, you see, tries but fails to get it right. It wants to be comprehensive and definitive, but it never quite gets there. The multiplicity and variableness of human life, and the many possible solutions, seemingly overwhelm the law. Law is general, while human life is particular; the law is exacting and sure, human life unpredictable. It is for this very reason that the Western tradition developed a notion of equity along with law, to ameliorate the harshness arising from a single rule applicable to all but not always right for individual cases. No law, just like no lawyer, gets it right all the time.

What kind of a course of study would teach undergraduates about “law” understood in this way? It would be possible, no doubt, to learn such things from a study of American government and Supreme Court decision-making. But no less or more so than from the study of history, anthropology, poetry, art history, or really any course of study that might teach one about the character of human beings and the world we live in, not to mention other worlds people have lived in previously. Even science and mathematics present an understanding of “what is.” It’s not that “pre-law” itself cannot be the basis of a coherent education preparing one for all that might be encountered in the law and as a lawyer. But unlike its counterparts, it would not be a set of ideas, principles, or subject matters, except in the broadest sense. Instead, it would be a course of study favoring an understanding of human life and society, human being and citizen, perhaps with an emphasis on how law may affect those things or fit them into a larger pattern. In other areas, one’s later profession decisively affects the content of the course of study. In law, in critical respects, it is the other way around.

The idea that there is some narrow curriculum that is distinctively legal or pre-law thus seems questionable at best, and foolhardy at worst, narrowing the vision of a prospective lawyer in a manner more likely to limit, than to facilitate, her future endeavors. The negative results of this creeping curricular view of law are palpable. More and more young lawyers seem not to know anything about anything truly useful, having studied no history or science or anthropology or mathematics or philosophy or even art history, where they would have thought more broadly about our world and its denizens. Where do young lawyers learn today about the possibilities of human nature and society? Certainly not from movies or binge-watching television series or pulp fiction, which all depend on standard types to tell their stories, if only to make them intelligible to a mass audience. They could benefit from the beautiful strangeness of Jane Austen, the exacting inquiries of Darwin or Margaret Mead, the blunt observations of a Thucydides or Gibbon, or the visions of DaVinci and Picasso.

Thinking “Like a Lawyer”

Once having entered law school, the picture hardly improves. At some point in your first week, if not your first hour, you were told that in law school you would be taught to “think like a lawyer.” What does that mean exactly? Certainly not to contemplate “what is.” But what is lawyerly thinking about? It’s probably most recognizable when one of your friends abruptly ends some discussion or argument with a dismissive “OK, I should know better than to argue with a lawyer.” What is it exactly that she means by this? Some kind of logic, surely, and skill at using it, the ability to gain success or victory in debate, rather than the pursuit of the truth, of what is. In the classic formulation, she likely thinks you’ve learned to make the weaker argument the stronger. And she wouldn’t be wrong, would she? Is this what law school teaches? And what exactly is the connection between that and having a fine legal mind?

Do the law schools ever tell you? They ought to. Thinking like a lawyer, as it is or at least should be taught in American law schools, is directly linked to those same broad concerns of human being and citizen, particularly as they are expressed in the adversary system. To begin with, thinking like a lawyer is thinking like an Anglo-American lawyer, quite different from the point of view of a European lawyer, or a Turkish or Chinese one. The adversary system is itself a certain understating of “what is,” built around a particular idea about the best way of finding ever-elusive truth. All parties could pool their resources and appoint someone to investigate a dispute, as continental systems might somewhat simplistically be said to do. Or, as in our system, we can engage people’s interests in marshaling evidence in favor of one point of view or another, allowing the truth to emerge in a clash of arguments before a neutral and passive fact finder listening to both perspectives. Which better reflects the world we live in?

Our society’s preference for the latter over the former depends on an understanding that no one can know the truth simply and that neither side is completely wrong, just as neither is completely right. And to be successful as a lawyer is to understand both points of view, which allows you to know your own case better, as well as to “psych out” the other guy. The best lawyers know that this is not a question of just piling up evidence, regardless the context. It is a matter of being persuasive with the facts by finding ways to create the right or most favorable context, which will enhance one’s own case in light of the facts and depreciate the opposing one. Your friend who cannot argue with a lawyer is simply not trained to think of facts in this way. She hasn’t gone to law school, even if those who have are not very clear anymore on what’s to be learned there either.

Law school, in its best form, not only makes one aware of these issues but also thereby inculcates the ethics of the profession. It does so less through professional responsibility classes, which are often poorly taught, than just by teaching the proper manner of advocacy in an adversary context. One learns respect for one’s adversary, not just for his speaking talent but because even the best arguments are seldom conclusive. And one dreads the possibility of getting creamed by a contrary argument of unexpected merit, or a watchful law professor wielding one, not to mention that you might, in a flash, be called upon to argue the other side too.

Are these lessons being learned anymore? Are law students even much aware of what they are doing? Consider recent demonstrations by law students against “big law” firms that represent clients on the wrong side of popular causes. It is not just that the students seem unable to distinguish between lawyers and their clients, damning enough for the legal education they have received or absorbed. There is the larger issue of whether they even comprehend the process that lawyers are necessarily engaged in, where the truth is not known in advance and emerges only in the crucible of the courtroom, where careful consideration of, and impartiality between, two opposing and very partial viewpoints reigns supreme. A lawyer who never questions the sense of his client’s case, or the power of his opponent’s, is a poor lawyer indeed. A law student who never recognizes the distinction between her view and her client’s, and the questionable character of both sides’ positions, is missing the point altogether.

These days, however, legal education, in an echo of the “pre-law” paradigm, seems to be more about a kind of expertise in certain subject matters. Yet, the professional rules instruct us that we are not to call ourselves experts in anything. The reason is that it is a fundamentally unsound representation of a lawyer’s profession, not to mention a lawyer’s abilities. Rather than focusing primarily on the specific content of the law, law studies should address its goal, focus, sense, and value, not to mention the deficiencies of the human mind in knowing these things. Law school should teach, as in an old Pascal aphorism (said with a slightly different intention), that “we know too much to be skeptics, too little to be dogmatists.” Lawyers need to be taught to embrace the pursuit of the truth, even if we recognize that the law or our client’s case is almost sure to fall short of it.

Specialization, Litigation Gamesmanship, and Marketing

What hope for improvement is there once a law student becomes a member of the bar? Not much, as the training of young lawyers suffers from multiple similar problems. Take three, for example: specialization, litigation gamesmanship, and marketing.

Specialization is a must these days. “What type of lawyer are you?” is a standard question asked by clients and colleagues alike. It doesn’t much cut it anymore to say “a litigator” or “a deal lawyer,” and you should just forget altogether saying you specialize in handling your client’s problems. Which problems? Not just curious minds want to know. Certainly, it takes time to understand the intricacies of intellectual property law, securities, bankruptcy, trusts and estates, or other such subject matters, so lawyers with those and other specialties will always need to devote careful attention to these subjects. The question is not whether one should know some part of the law in depth, but whether that’s all one should know well, or what one should know best, or feature. If the law is about “what is” or what in law school was called a “seamless web,” it behooves every lawyer to study outside his or her specialty, not just the law itself but those things beyond the law concerning human nature and society too.

Litigation aggressiveness and gamesmanship are often treated by the courts as a matter of good manners, a code of doing that can be memorized or simply enforced. But even just manners can be small morals, teaching us about more than the proper address to your adversary or the court. More important, though, is what over-the-top litigation tactics say about a lawyer’s understanding of the process he is engaged in. If, as has been suggested, the adversary system is based on a shared understanding of the difficulty of finding the truth, one should have no truck with thinking about one’s adversary as deranged, malicious, or stupid, let alone saying so. The other party has as many reasons for advancing its perception of what happened as you do. And it is mistaken, even foolhardy, to discount the other side’s case as the ravings of a fool or the work of a miscreant, or to treat your opposing counsel as one. But so many young lawyers have poor examples set for them—nay, are taught—that they need take just such an attitude toward the other side.

When representing one’s clients “zealously within the bounds of the law,” those last six words are as important as the first, not its rump end, as is sometimes thought. In all one does, it is essential to have as a foundation what the legal system requires, what the whole of the law, or at least our system of law, is seeking to achieve. A lawyer’s role as officer of the court is no empty slogan, the mere rhetoric of a judge’s admonishing phrase, but one’s first and most important duty, in a hierarchy stacking all of them. Once again, the focus needs to be first on the objectives of the legal system, with all of the scope that implies, next on the interests of one’s client, and only last and least on one’s fee. Not just the business-of-law themes one hears everywhere and always these days tend to reverse these priorities. So much in the legal world tends to narrow the thinking of lawyers to home economics and success while diverting them from principles and concepts concerning the whole, even if it is just the whole or the good of the American legal system.

Then there’s marketing. Who knew that the cultural shifts toward image and brand, together with cases like the Supreme Court’s decision in Bates v. Arizona, would have such lasting consequences on lawyers? An appendage of the law-as-business movement, it cramps the outward-thinking mind-set with dreams of moneymaking and celebrity. The pressures it puts on young lawyers to stand out at an early stage of their careers instead of slowly perfecting their craft, flaunting their meager experience, and understanding rather than thinking carefully about what they are doing, are palpable. We seem to be moving farther and farther away from teaching open-mindedness about the law and one’s practice of it, and closer and closer to a view of the profession as a narrowly focused, singly purposed business enterprise.

Individually, neither pre-law, nor law school as technocratic training, nor the business of law can be placed at fault for the narrow vision of lawyers these days, nor are they alone likely to spell doom for broad-thinking lawyers generally. But these developments are hardly encouraging. Narrow thinking and narrow-thinking lawyers are a grave danger to the profession, which risks losing its tie to life generally while becoming little more than another form of mere moneymaking. If lawyering is to maintain intact its role in a legal system with noble intentions, it needs to recapture the broader vision implied in not just those intentions but all concerns of human being and citizen generally. Pride and Prejudice, anyone?

Robert E. Shapiro

The author, an associate editor of Litigation, is with Barack Ferrazzano Kirschbaum & Nagelberg LLP, Chicago.