Thinking Like a Lawyer
It states a general proposition that every rule has an exception. Then it goes onto say that there's an exception to this rule for rules that have no exceptions. It's like the childhood riddle, where someone states, " I am a liar. The law is full of conundrums and ambiguities like this one. If you can accept the interplay between those two statements without being distressed at the inherent fuzziness, then you will do well in studying the law.
The law is inherently fuzzy in order to be flexible. Although judges attempt to interpret laws that are clear, there is almost always a set of circumstances where applying the rule would be unjust.
Consequently, some latitude exists in the law in order to reach a just result. This can drive you mad as a first year law student. You want as clear of an answer as you would get in mathematics or physics. The law is seldom black and white. Everything is a shade of gray. The right answer is almost always couched in terms of probabilities.
What are the general issues that could arise in this situation?
There is no way around this, and the best method is to embrace and accept the inherent ambiguity of the law as a strength. Instead of thinking of the law as ambiguous, consider it flexible. Your skill as a lawyer will be in how you can use this flexibility to achieve the correct result for your client.
One of the biggest traps that professors use on unwary first year law students is playing on the emotions. The professor poses a hypothetical situation in which it's easy to hate one of the parties and sympathize with the other. The trick is to apply the law neutrally in response to the parties' legal rights and not your personal feelings. The classic example is a situation in which a group of Neo-Nazis attempts to assert their First Amendment rights for free speech by holding demonstrations in a city largely populated with Jewish people who are concentration camp survivors. Naturally, almost everyone feels sympathy for the concentration camp survivors.
These people shouldn't have to be subjected to a Neo-Nazi's political belief in their own home. However, professors purposefully set up situations that create internal emotional conflict in order to illustrate that you should judge a situation according to the law and not let your individual biases get in the way. The correct legal result here is that the Neo-Nazi possesses a free speech right even in these circumstances so long as they are not inciting a riot. This does not mean that you have to check your ethics at the door of law school. People complain that lawyers have no morals but these critics don't see the higher principles that are at stake.
Those higher principles might be constitutional rights such as free speech or the right to be represented by counsel. This is the higher ethical ground that you need to take as an attorney rather than siding with one party or another merely because of your own political beliefs.
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Finally, be aware that the professor's hypothetical situations are not the real world. While you may not like the result of the hypothetical, you need to demonstrate to the professor that you know how to apply the law. If you really feel that the result is unjust, then state the law with the correct legal result followed by your reasons on why you don't think the result is just. Just remember that it's a hypothetical. Don't be tied emotionally to things that don't matter.
In order to avoid being emotionally tied to a position, you should always try to argue both sides of an issue. Luckily, the same ambiguity of the law that drives you crazy in Strategy 1 allows you the flexibility to be on either side of a question in Strategy 3.
Adopting this attitude will better prepare you for the exam and the practice of law. You want to be able to take on either a defendant's or plaintiff's position for any given legal issue because you don't know whether the facts on the exam will lean towards one side or the other. One of the biggest traps that first year law students fall into is studying only from their own point of view. For instance, some people are naturally plaintiff's attorneys - fighting for the underdog against the big corporate giant. Others tend towards representing defendants - protecting shareholder interests from people out to make a quick buck on a fraudulent claim.
Each side is sometimes right and sometimes wrong. Your immediate goal on the exam is not to figure out what kind of lawyer you are. Your immediate goal is to do well on the exam. This means that need to be able to argue the side that seems to be correct given the facts. This may, in fact, be a party that you wouldn't normally side with. One major upside to this sort of training is that it will make you a better lawyer to be able to argue both sides of a case.
Once you do adopt a plaintiff's or defendant's posture in real life, you will benefit from knowing what arguments the other side will bring forth. If you can understand the intricacies of another side's case, then you can better attack that argument. Around the age of two years old, a child often starts asking his or her parents "Why? Every rule of law, judicial decision, statute and legal construct has a reason for its existence. It may not be a very good reason, but you will be a better lawyer for behaving like a two year old and repeatedly asking "Why?
This act of questioning focuses you on policy as a basis for the law. Understanding policy will carry you far in successfully writing exams. Arguing policy is one of the four key methods of analysis. Law school is as much a psychological game as it is an intellectual game. Students defeat themselves ahead of time by stressing out on the workload.
You can put yourself in a better position as a student by adopting these simple attitudes. Four Strategies to Excel as a Student 1. Keep your cool 2. Compete only with yourself 3. Play with concepts like a new toy 4. Strive for balance in your life. Law professors use fear as a tool to motivate students to 1 work hard and 2 be cautious lawyers. Many professors feel that a little anxiety is a good thing for students. The very structure of the case method and Socratic dialogue used in most classrooms helps foster this fear since nothing is laid out on the table.
However, fear also takes you away from learning. It's a waste of valuable energy. Instead of focusing on the learning, you focus on the fear of not "getting it. First, everyone in your class is in the same state of ignorance. No one knows what's coming next. Second, if you make a mistake in the classroom, it doesn't count. The only grade that counts in most law school classes is the final. Relax and make mistakes. It will help you in the exam to know your weak points. Third, hundreds of thousands of students have sat where you're sitting now and have survived and thrived. Some people purposefully create stress as a motivator for themselves.
They freak out at the workload and use it as a way to bond with other students. Stay away from the people who are stressing out. Stress creates stress, and you want to focus your energies on studying, not stressing out. Although grades are important, it's also important to put them in perspective. One key factor in getting good grades is to forget about them and concentrate on the learning. Focusing on the competition - i.
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If you are constantly sizing up the competition and comparing yourself then you are taking yourself away from valuable study time. The idea here is to recognize the importance of grades in determining certain things, such as law review, summer jobs and so on. At the same time, you realize that the learning and relationships are far more important keys to happiness than grades. The stress of getting good grades often creates competition, which leads to bad feelings between students.
There are true stories of people hiding books in the library or ripping pages out of case books that are necessary to complete an assignment.
Part 1: Adopt the Right Frame of Mind
This sort of competition can be very destructive. The best strategy to deal with the stress of grades is to compete only with yourself and not others. The people in your class are your future colleagues. Building trust and relationships with these people will take you much further than any marginal increase in grades you might get from cut-throat competitive tactics for grades.
The most successful people in the world are not those who are most competitive with others. Rather, the most successful are those who compete with themselves to learn the most. Whenever you learn a new legal concept, play with as if you were a kid and the concept was the coolest, neatest, newest toy that you own. Make the concept your own by restating the principle in your own words. Turn the idea over in your head as you're walking to class or taking a shower.
The Language of Law School: Learning to "Think Like a Lawyer"
Thinking like a lawyer means learning to solve or prevent problems by asking a series of questions. The exact questions vary depending on the situation, but there are some consistent themes. As current and former law students know, you can take this line of thinking too far. Say the two of us decide to collaborate on a project. I am going to take photographs, give you prints, and you are going to add to the prints. Who owns the copyrights , how we write the credit line, if we are a partnership, how we share profits and losses, and how we own the equipment and material.
How each of us might feel if Anthropologie wants to license my photographs , how the nobody and the somebody might feel different about things, how I might feel if my materials cost more than your materials. We would have the comfortable and more importantly uncomfortable conversations about our collaboration. Learning to think like a lawyer can be a huge asset to your creative business. Is this a new way of thinking for you? Or did you just learn you are already thinking like a lawyer? Get practical legal tips and support from your friendly legal eagle each week in your inbox.
And discover that there can be ease in legalese. Your email address will not be published. You started your creative business to be your own boss, create what you wanted, and set your own schedule.