What it Means to”Think Like a Lawyer”

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Heroes

I have always been puzzled by the venerable phrase “thinking like a lawyer.” What does it mean and should we take it as a  compliment or a put-down?

I think the idea is  best captured by a metaphor trial lawyers sometimes  use to describe the craft of a colleague they especially admire or an adversary they fear — he or she can “see out the front.”  It means the ability to look over a complex legal situation and manage its resolution to your client’s advantage.  Everyone knows that a competent lawyer must  know  all the  facts and  the laws relevant to  his or her case.   But those are  just the preliminaries. The best  lawyers have the  ability to weave those  facts and laws into a powerful narrative that in the end wins the day.

In the book  Guile is Good,  I  illustrate this point by telling how trial lawyer Gerry Spence  framed his final argument to the jury in a famous lawsuit  brought against the  Kerr-McGee Corporation by the estate of Karen Silkwood.   Kerr-McGee was a huge corporation that made plutonium-radium fuel rods for nuclear reactors.  Spence’s complaint  claimed that Silkwood, an employee and  union rep at a Kerr-McGee plant, had been contaminated by nuclear active material while working at the plant.  She later was killed in a car crash on her way to an appointment with a reporter for the New York Times  to discuss worker contamination.  (You may have seen the award winning film Silkwood that tells her story.)

Spence’s final argument to the jury is a good example of a  lawyer “seeing out the front.”  Like a well-crafted play, it had four “acts.”  First, Spence described in concrete detail the negligence of Kerr-McGee in its meager  program of safety precautions; then he described the  heroic young  Silkwood’s  attempts to  to warn the trusting  workers of their danger. In the penultimate “act” he  showed how Kerr’-McGee had tried to blame Karen  for her exposure to radioactive poisoning.

And then there was the finale  where  Spence’s  urged the jury to use the power that law gives them to see that justice was done to the memory of this heroic young woman.  The jury responded by awarding the Silkwood estate five hundred thousand  dollars in compensatory damages and  five  million dollars in punitive damages.

Not only did  Spence write the script, he produced  and starred in  the play. We have to understand that winning  a big lawsuit is the product of a a thousand  strategic decisions, some small, some large, but all essential to victory.  Before he or she accepts the case, the lawyer must evaluate it to make sure it will produce a verdict that justifies the expense of going forward. He or she then must decide what evidence to introduce and what evidence to leave out.  Also what  improper  objections to make  to disrupt the defendant’s case and what proper ones to  omit in order to  persuade the jury that the lawyer is so confident they will do justice to his client that he or she has no time for petty legal bickering.

And  the lawyer also  needs the nerves of a card sharp  and the acumen of an accountant to decide on what settlement figure he or she will finally accept, knowing full well a five million punitive damages verdict is never going to be upheld on appeal. But to me , perhaps the the most amazing talent of all is the  self-confidence to  choose an unorthodox approach to trying a case,  knowing full well that you  will be roundly criticized should it fail.

I think it parochial to  think of that only lawyers “think” this way.   Spence uses his  talent  in a legal context, but I think he is just one example of  a larger group of people with the more general ability to make  intelligent decisions under conditions of great uncertainty.   Lyndon Johnson showed the same talent creating the  War on Poverty ,as did  Steve Jobs in the marketing of computers, Berry Gordy in the record business, and  Harvey Weinstein  in the film industry.

But that still  leaves the intriguing question of whether it is “good” to  “think like a lawyer”?  In one sense, such thinking is  clearly a form of human excellence, like  running fast or singing  beautifully.  But things get more complicated when we put the question from a societal  perspective. What’s good for the client may be bad for the society.  Spence  had the luck (or sense) to use his skills on what appears to have been the side of the angels.   But not all brilliant lawyers are fighting for the Karen Silkwoods of the world against the Kerr-McGees.  While many talented lawyers today are fighting to combat the causes of climate change, I am sure that many more are using their skills to defend the corporations that are helping to cause it.

And then there’s the question of whether this brilliance  makes the  lawyer a better and/or happier person.  Here we must face up to the  sad fact that great ability often  soon joins itself to great hubris, what one might call the “master of the universe” syndrome.  A great man (usually it is a man) persuades himself that conventional ethical limits no longer apply to him.  After all, it  was  the same decision-making prowess that    enabled  Harvey Weinstein to bring a  beautiful movie like The Crying Game  to the screen that also permitted him to conceal his terrorizing of  young actresses for  decades. And let us not forget Judge Kozinski.

Here as elsewhere we can learn a lot from fiction.    Francis Ford Coppola’s  The Godfather  trilogy shows us early on that  Michael Corleone is the brightest of the three brothers, but then we witness how in the end his  brilliance at outsmarting the world only earns him  loneliness and bitterness.

So if  you ask me whether it’s “good” to think like a lawyer, I have to distinguish between different meanings of the term “good.”   If we think of  intellectual ability as an abstract quality (like a sharp knife) it is clearly  “good.”  But once we consider the purposes we use that intellectual knife to accomplish or how its use affects our own sense of well-being, I am afraid that simple answers elude us.    

If you would like to know more about Gerry Spence’s  performance in the Silkwood trial  and tales of other  lawyer creativity,  here  is  a link to my book Guile is Good.

6 Comments

  1. Michael Asimow says

    Hi John, good post! To me “thinking like a lawyer” means something far more modest than what you describe. It’s the ability to apply legal principles to diverse fact situations in an objective manner. To be able to winnow out all the irrelevant facts & emotional stuff and identify the few facts that count when applying a vague principle of law to a messy situation. And that’s what we train people to do in the first year so it becomes instinctive. It’s what is measured by law school essay exams and the bar exam. So I don’t think it is bad or good, although sometimes it can be bad if thinking that way causes you to believe that nothing else counts, such as a sense of justice or injustice, a respect for emotion, an inability to distinguish right from wrong.

    Of course successful lawyers need much than the ability to objectively apply legal principles to fact situations in the world (which is all that law school grades measure). They have to develop empathy and get people to trust them. They have to have wisdom and judgment to give good advice. They have to have negotiating skills and writing skills. Yes, they need a bit of guile–but not too much. And yes, they have to be good story tellers. But story telling skills apply mostly to litigating lawyers and very few lawyers (aside from prosecutors and public defenders) actually litigate. So the Jerry Spence/Silkwood situation is pretty rare. Just my random responses to your post.

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  2. Thanks, Michael, for your cogent critique of my post. I have to admit that you have a good point in insisting that we focus more of how the “ordinary” lawyer plies his or her trade than the “extraordinary”. Also, you rightly point out that the bureaucratic structure of our contemporary legal system prevents the full employment of many of the skills I applaud.

    Still I can’t help but think there is more ambiguity with regard to law and facts in most cases than we tend to accept. The potential for lawyer ingenuity is present but remains unexplored due to monetary concerns, bureaucratic impatience, or just a lack of legal imagination.

    I also don’t think that the lawyerly ability to “see out the front” is only relevant to big trials. I am just reading David Grann’s excellent “Killers of the Flower Moon” which tells a tale of the history of the Osage tribe in Oklahoma after oil was discovered on their land. The tribe was happy to discover that their lawyer many years before had slipped in a clause into their agreement with the federal government that guaranteed that all minerals rights would remain in the hands of members of the tribe.

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  3. Dede Donovan says

    Hi, John: The link to your book didn’t work. I’ll check Amazon, as I definitely will be buying it.

    To me, thinking like a lawyer means something pretty simple: being able to see both sides of an issue.

    Dede

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    • Thanks, Dede, for the heads-up on the link. I hope I have fixed it.

      I agree that it is essential to see both sides of an issue, but we might have a difference of opinion on what we mean by “see.” I am suspicious of looking at either law or facts as static commodities to which we apply logic to arrive at a “correct” answer. I think that an essential part of lawyering is being alert to the indeterminacy of both “facts” and “law” and how they can be read to point to more than one resolution of a legal problem depending on a lot of factors, including the skill of the lawyer. I guess that’s what I think “seeing out the front”means.

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  4. Wendy LaRiviere says

    My memory of Gerry Spence is that he had that indispensable attribute of a trial lawyer of knowing how to pick a jury, how to relate to a jury, and how to tell a story to that same jury that they could believe in based upon their own life experiences. He was renowned for his charm and folksiness. Some might call that guile, a higher level of guile, to be sure but guile none the less.

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    • Thanks, Wendy. I totally agree. I think of “guile” as including those forms of intelligence that do not depend solely on logic. “Bluffing” in poker is a good example..

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