October 2012 Bar Bulletin
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October 2012 Bar Bulletin

Add Color to Your Practice: Delay Thinking Like a Lawyer

By John Shaffer


"In rendering advice, a lawyer may refer not only to law but to other considerations … that may be relevant to a client's situation."
— RPC 2.1

In law school we were taught we must learn to "think like a lawyer." We were trained to forget our feelings, carefully note the facts, and discover and apply the law. We had to analyze, analyze, analyze. We learned to argue both sides of a case, think under pressure and, eventually, answer leading professorial questions with an "it depends."

In the eyes of our professors, we were in great need of training. As acerbic Professor Kingsfield put it in "The Paper Chase" — "You teach yourselves the law, but I train your minds. You came in here with a skull full of mush; you leave thinking like a lawyer."1

I was blessed with follow-up training, too. I still remember the surgical critiques of my draft opinion letters and legal briefs. The scalpel of analysis was usually applied by a senior partner. He was a careful and single-minded man.

"Lawyer's don't feel," he'd say, "they research, investigate, analyze and opine. When you state a fact, be explicit with your source; when you offer an opinion, state the assumptions you've made in coming to your conclusion. Strive for greater clarity — this letter should be at least three pages shorter."

I'd often leave our sessions more muddled than when I arrived, but layers of befuddled expression would have been stripped away, leaving me to reconstruct a thought process that was more logical, linear and less confused. Over time, I began to drive through to greater clarity. Yet the precision of my thought went too far. I sometimes focused on the dot and tittle, and missed the grandeur of the book.

The irony of what was happening to me is that I am at heart, and for better or worse, a deeply feeling person by nature. For me, thinking is so much more than just an analytical process. Genetics and early life experiences endowed me with "thinking circuitry" that is fundamentally non-linear in nature. I seem to gather data by sensation, intuiting unusual relationships as I grope for a skeletal context on which to hang the data. I instinctively emphasize feelings as a valuing process as I try to make sense of the world around me.

My judgments, schooled as they are after all these years, are first still based on deep-seated sentiments that can surprisingly change without evaluative thought. While I have learned to slow my process down, I still can change direction 180 degrees if I am given just one more significant fact, spinning on a point of reference no one else even sees.

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