thinking like a lawyer
A commentator on Scheherazade's blog raised this point about thinking like a lawyer and got me keen to blog about it.
I have been heard to say on many the occasion that doing your law degree does not actually teach you the law or the skills you need to work as a solicitor or barrister. In fact, all it teaches you is how to think like a lawyer.
But what does that mean?
The way I see it, is that it teaches you the following:
1. to look at a case objectively and from all sides to give your advice;
2. to separate emotion from the objective facts of the case and be able to back up your opinion with evidence and settled law (or at least convincing obiter dicta);
3. to be able to break down a complicated fact scenario into its most basic elements and look at each element, both one by one and in conjunction with the others, to reach your conclusion;
4. the language of the law, including the latin, so that you can communicate effectively with other lawyers, without having to go into lengthy explanations to make a point;
5. confidence in your ability to find the law, and then apply a principle to the given facts.
There may be more, but these are the ones I can think of right now.
I would say that good lawyers (whether barristers or solicitors) combine this ability to "think like a lawyer" with good research skills, excellent communication skills (with clients, other lawyers, and the court*), and either an adequate memory or an excellent precedent system, or both.
* Otherwise known as the ability to argue your point ;o)
From my experience in Queensland and Ireland, and from talking to others about their experiences, I don't think these basic skills would change much over borders, but perhaps my international readers could comment if they don't agree.
I have found that "bush lawyers" or self-represented parties often have the other skills I mention, but lack this ability to think like a lawyer. In particular, my points at numbers 2 and 3 above are often lacking. This is what frequently makes them difficult to deal with - they argue emotionally, can't back it up, and miss vital points.
Listening to: Wesley Davidson's little 2 song CD
I have been heard to say on many the occasion that doing your law degree does not actually teach you the law or the skills you need to work as a solicitor or barrister. In fact, all it teaches you is how to think like a lawyer.
But what does that mean?
The way I see it, is that it teaches you the following:
1. to look at a case objectively and from all sides to give your advice;
2. to separate emotion from the objective facts of the case and be able to back up your opinion with evidence and settled law (or at least convincing obiter dicta);
3. to be able to break down a complicated fact scenario into its most basic elements and look at each element, both one by one and in conjunction with the others, to reach your conclusion;
4. the language of the law, including the latin, so that you can communicate effectively with other lawyers, without having to go into lengthy explanations to make a point;
5. confidence in your ability to find the law, and then apply a principle to the given facts.
There may be more, but these are the ones I can think of right now.
I would say that good lawyers (whether barristers or solicitors) combine this ability to "think like a lawyer" with good research skills, excellent communication skills (with clients, other lawyers, and the court*), and either an adequate memory or an excellent precedent system, or both.
* Otherwise known as the ability to argue your point ;o)
From my experience in Queensland and Ireland, and from talking to others about their experiences, I don't think these basic skills would change much over borders, but perhaps my international readers could comment if they don't agree.
I have found that "bush lawyers" or self-represented parties often have the other skills I mention, but lack this ability to think like a lawyer. In particular, my points at numbers 2 and 3 above are often lacking. This is what frequently makes them difficult to deal with - they argue emotionally, can't back it up, and miss vital points.
Listening to: Wesley Davidson's little 2 song CD
posted by OLS |
Thursday, October 14, 2004 | 4:15 pm
5 Comments:
I think it is important for a practicising lawyer to perceive the likely outcome of a course of action and if that is not recommended by the lawyer
then accurately convey to a client the risks attendant in taking that or alternative course of action.
To often I have read another lawyer's advice (obviously in the context of advice to Government) which is focused on providing an elucidation on various aspects of the law (ie statutory interpretation) and is an interesting academic journey for the writer but is of little to no practical use to the non-legal client.
As far as I am concerned if I provide an advice a client who ultimately decides not to use it then the client should be doing so in full knowledge of the consequences of a failure to act on my advice and therefore I am covered! It is a matter of risk management for my client.
I am so annoyed I posted a comment yesterday and it is now floating around the blogosphere. I thought I would wait and see if it turned up again before trying to recall exactly what I said.
I have learned through my experiences as both the lawyer and the client that there is a process through which advice is both sought and obtained and can only be learnt in practice and not through study.
Having had to read many legal advices from the perspective of a government client who is also a lawyer I have come to realise quite a few lawyers like to provide a lengthy elucidation on legal theories (i.e. involving statutory interpretation or delegations or administrative law)without providing the client with a practical recommendation and an elaboration on risks attendant in following one particular course of action over another. Too often I have read an advice which ultimately leaves you exactly where you started and sometimes even in a worse position.
In order to get the best advice from a lawyer a non-legal person needs to understand that the questions posed of the lawyer are as important as the answer. I have often assisted non-legal clients in the initial conference with the lawyer in order to establish a MUTUAL understanding of what the issues are, the relevant facts, the potential laws involved, and how the advice once obtained is to be used. Most importantly the lawyer should address the risks involved when taking a particular course/s of action and be illustrated by way of options posed for the client.
I feel that too many clients obtain advice simply for the sake of saying that they sought legal advice. I encourage the client to think about the "what ifs" prior to obtaining advice because should the advice NOT provide the result they are expecting the client will still need to know what the next most likely course of action should be.
In summary there are too many lawyers who despite several years practice who provide advice which is little more than a pleasant intellecutal and academic excursion for themselves(which is what is learned at law school) rather than a practical guide through a legal mire for the client (what you learn in practice).
Thanks got that off my chest!
Now I am REALLY annoyed with Blogger because my first comment has FINALLY turned up after I just spent ages on the second one and checked several times to see where the hell it was. I haven't read it to see whether I was consistent or not. :(
For some reason, both of your comments seemed to turn up at the same time! Go figure. Blogger is a bit of a bugger like that.
I agree with your comments, especially about giving a recommendation with your advice. I suppose I should add that to what makes a "good" lawyer.
Another part of it, I think, which comes down to experience, is having some idea about which way the court is likely to view a particular precedent or factual issue.
For example, I remember having a discussion with Counsel a couple of years ago about the defence of "honest and reasonable mistake of fact". We had great difficulty explaining to the client that it's almost impossible to disprove "honest mistake of fact" without clear, unambiguous evidence, so the best course tends to be to attack the reasonable part of the defence. And often evidence that they said showed the defendant to be dishonest, were better used to show that his stated belief was in fact, not reasonable.
I used to have one employee of the client who had a Masters in Law, but had never practised. He was good on the law aspect but really had no idea about the practicalities of the court system and would argue pedantically the terminology I used until I found a Supreme Court case that used the same terminology and I was able to validate what I had been telling him: that the language used in the statute was not the language used in practice.
It's not something you learn from a textbook or even from the Legal Practice Course. I think it's something you only learn by keeping your ears and your mind open once you start practicing.
- OLS
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