Managing the Moving Parts of a Legal Problem
(The Perils of Simplicity and the Comfort of Methods)
Law professors face a common educator’s dilemma: We must choose between leaving our students with satisfying oversimplification and insisting that they deal with discomforting complexity. Students commonly come to us with the expectation that in law school they will learn legal rules, so that as professionals they can apply those rules. But we know that things are not so simple.
The Moving Parts of a Legal Matter
Expert lawyering requires much more than learning and applying rules. It is the art of managing particular kinds of contingencies. Legal matters rarely have cookie cutter resolutions. The expert lawyer must be able to:
- identify shifting personal, institutional or social goals;
- in dynamic and usually complex factual situations;
- governed by usually ambiguous rules;
- and then interact with others to refine and further the goals of those s/he represents.
Lawyering is a complex art because each element of a legal matter – goals, facts, rules, and interactions – is dynamic. Goals are subject to revision; both facts and rules are subject to interpretation; and interactions are subject to strategic management. Expert lawyering is not a matter of taking orders about goals, assuming facts and laws as given, and letting interactions unfold as they might. Expert lawyering is a matter of judgment and choice.
How, then, should lawyers be trained? Should they be taught rules? Should they be taught to develop and exercise professional judgment? Jerome Frank famously asked, do we need “law schools” or “lawyering schools”? The answer is that the two things are inseparable. To understand legal doctrine fully is to understand how lawyers use and change it as they manage goals, facts, rules, and interactions.
Formal institutions for training lawyers in the United States began as “law schools” in the narrowest sense. They used treatise-based methods in which students read or were lectured from scholarly or commercial summaries of various bodies of law that they were expected to learn. This kind of learning by rote perpetuates the treatise writer’s or the lecturer’s interpretation of law as it stands, but it does little to develop students’ ability to interpret law themselves. Moreover, it confuses students about the extent of their professional responsibility and deludes them about the dynamic nature of the laws they will be called on to actualize.
Active Learning for a Dynamic Profession
With the introduction of the Langdellian case method, students were jolted out of the passive silence of the lecture. Case method professors challenge students to discover and interpret legal rules themselves in controlled, rigorous dialogue about judicial opinions they have read in advance. This method builds students’ judgment about the interpretation and evolution of rules, and it goes some way toward building their judgment about the interpretation of facts, but it does little to build judgment about the less matter-of-fact work of investigating and developing of facts, or investigating and developing of goals, or strategically managing professional interactions. In short, without modification or supplementation, this Langdellian method neglects the more relational dimensions of legal practice.
Some believe that relational judgment and skill are the un-teachable results of natural talent or repeated practice. This belief may account in part for the fact that relational skills are neglected in the core curriculum of legal training and left to be acquired in clinical programs that are available to only a fraction of law students, and in summer and post-graduate practice settings. Most will agree, however, that the development of these important skills should begin in structured settings and under close expert guidance. Employers should not be responsible for basic legal training, and clients should not suffer the mistakes of novices who have not been comprehensively prepared and supervised. Clinical and lawyering faculties and a growing number of case method teachers have stepped into the breech by designing methods to support the development of law students’ relational skills until they are “client ready” and prepared to supplement rather than tax an employer’s resources. Authors of course texts increasingly employ a problem method that places students in role as legal problem-solvers and therefore expand the range of strategic or relational analysis that can be done in a classroom.
The Lawyering Method
The Lawyering Method takes the next step by asking students to practice in controlled, simulated settings. In series of increasingly complex exercises, students
- Study the elements of a lawyering task (e.g., interviewing, negotiation, brief writing);
- Accept an actual or hypothetical case assignment that challenges them to undertake the task under study;
- Engage in collaborative, strategic planning to meet the challenge;
- Meet the challenge through formal or informal interactions; and then
- Subject their planning and performance to extensive self, peer, and faculty critique.
The immediate goal is structured, carefully sequenced learning. The larger goal is building career-long habits of self-reflection for professional growth.
Lawyering students are not left to navigate Lawyering exercises by intuition or trial and error. The Lawyering method establishes a two part, problem-solving framework for identifying, and then addressing. It begins with the four elements of a legal matter that were introduced above. Each element is presented as a contingency to be managed rather than a given to be suffered, and each contingency is complicated by competing tensions:
The goals of a legal project are constantly shaped and reshaped in light of changing conditions and competing considerations. Lawyers must hear or propose explicit goals, identify implicit goals, and balance both against judgments about the client/beneficiary’s interests and judgments about competing interests.
Lawyers discover and interpret facts. In doing so, lawyers are obliged to be truthful and responsible, but simultaneously obliged to serve client interests faithfully. This is not a simple matter, for facts are rarely certain and always subject to varying interpretations. There is often tension between the quest to discover truth as nearly as one can and the quest to succeed on a client’s behalf.
Lawyers also find and interpret rules. In this, too, there is an obligation both to be responsibly truthful and to serve client interests faithfully. But choosing among possibly applicable rules and interpreting those often ambiguous rules is no simpler than finding and interpreting facts. It requires negotiating tensions between the quest for a proper or just result and the quest to prevail.
Lawyers interact in a variety of formal and informal settings. In courtrooms, in offices, at bargaining tables, in legislative chambers, online, and on the phone, they communicate with clients, counterparties, witnesses, and various kinds of decisionmakers. This requires understanding the rules and expectations of each forum and understanding how those rules and expectations might vary with personalities and circumstances. It then requires managing each interaction strategically to further institutional or client goals without being wrongfully deceptive or inappropriately manipulative.
The Lawyering Method describes practice as making hard choices between what is proper and what is effective; between what is wanted and what can and should be; between chasing truth and chasing success; and between self-interest and the common good. It then provides tools and procedures for making these choices expertly and responsibly.
The Lawyering Method incorporates and exceeds syllogistic reasoning. While rule-based reasoning is a critical component of lawyering, expert lawyers use additional modes of analysis to manage contingencies more effectively. Once named and defined, students can learn these modes and improve competency over the course of their careers. They are:
• Rule-Based Analysis – recognizing, correcting, and avoiding fallacies and seeing alternative logical structures in reasoning from rule to result
• Institutional and Socio-Cultural Analysis – recognizing and addressing the structure, characteristics and motivating forces within institutions and the informal rules and habits of thought that influence large and small cultures
• Psychological Analysis – recognizing and addressing the interpersonal and intrapersonal forces that affect human decisionmaking, behavior, and interaction
• Rhetorical Analysis – understanding, countering, and making strategic uses of narrative, language, and other means of communication
• Role Analysis – defining the reach, the limits, and the responsibilities of the lawyer’s role.
Every law student has the ability to become proficient in each of these skills once they are named, experienced, and cultivated with close mentoring, but no one comes to law school with each of them well enough developed for the practice of law. Indeed, few people come to law school with any of these competencies developed to the level and in the fashion that professional practice requires. Providing an integrated, practice-oriented approach to legal education is the hallmark of the Lawyering Method.
One of the insights that distinguishes the Lawyering Method is that each of these modes of analysis is applicable to every dimension of a legal problem -- to identifying and interpreting goals, to finding and interpreting facts, to finding and interpreting the law, and to interacting strategically to further goals. Here's why.
Logic Is Not Just for the Analysis of Law
Logical analysis is often mistakenly thought to be relevant only to the interpretation of law. Reasoning correctly from rule to consequence is surely at the heart of interpreting law. There is, however, no aspect of professional practice in which fallacious reasoning can be tolerated. To manage an interactive setting, you must reason logically from its rules of play and from the dispositions of the players. To identify and refine desires, you must follow the logic of unbargained-for consequences. A detective's logic facilitates the interpretation of facts. The skilled lawyer uses logical analysis to attack every dimension of a legal problem.
Institutional and Socio-Cultural Analysis Enhances Strategic Thinking
Institutional and socio-cultural analysis is more evidently cross-cutting. The settings for much of a lawyer’s work are institutional – courts, administrative and service agencies, corporate and not-for-profit clients, to name a few. Advocacy within these settings requires understanding how they are structured and what motivates the players within them. Moreover, rules are often the creation of institutions and therefore best understood in light of institutional pressures. And every dimension of a legal matter is affected by large and small cultures – the cultures of courts, agencies, markets, geographic areas, nationalities, genders, and religious groups, for example. The informal rules that “govern” these cultures are often as relevant to a lawyer’s work as the rules produced by legislatures or administrative bodies.
Psychological Analysis Is Not Just for People-Management
Intra-personal analysis is the self-reflective process by which we understand our own feelings and actions. Inter-personal analysis is the process by which we understand and manage human interactions. We refer to intra- and inter-personal analysis collectively as psychological analysis. At first blush, psychological analysis seems uniquely relevant to understanding and managing strategic interactions. But psychological analysis, like logical analysis, is a more versatile tool than its name might suggest. Law suits, legislative deliberations, interviews and negotiations are all human interactions. Understanding and managing these settings therefore requires interpersonal sophistication, and behaving strategically in them requires intra-personal awareness and control. Deciphering and negotiating goals requires interpersonal intelligence, and communicating effectively in that process requires intra-personal intelligence. Whether we work from documents, from physical evidence, or from interviews, investigating and piecing together the facts and implications of a human situation requires both intra-personal and inter-personal intelligence. And because rules are human creations, usually for the management of human interaction, psychological analysis is required to interpret them.
Rhetorical Analysis Is an Interactive Process
Rhetorical analysis is most obviously relevant to the construction of arguments. If arguments are understood as tools to strategically manage interactions, the study of persuasive communication requires more than drafting memos and briefs. It requires careful listening, a deft use of language, a conscious approach to narrative, and awareness of the ways graphic presentation influences the reception of appeals. Rhetorical analysis must be seen as an interactive process that begins with appreciating the narratives clients are living, refining goals, developing strategy, and communicating effectively from this understanding.
Role Analysis Encouarages Responsible Advocacy
Role analysis is a tool to examine performance and determine the type of action required for responsible advocacy. A lawyer may function as a governor of a client’s behavior, a guardian of a client’s well-being, or a guide in a client’s self-determined quest. Balancing these roles is an inevitable part of tackling each dimension of a lawyering task. It can determine the choice of forum or setting for achieving the client’s goals. It can determine how assertive the lawyer may be in refining those goals. And it can determine a lawyer’s responsibilities in the interpretation of facts and rules. Role analysis cultivates a habit of reflecting on choices and strengthening ethical sensibilities critical to successful lawyering.
The Lawyering Method’s elements and modes of analysis combine to form a vocabulary and a conceptual frame for developing the intellectual breadth and versatility that expert practice requires.