How lawyers think

By: Pulat Yunusov · March 5, 2010 · Filed Under Legal Reform · 11 Comments 

We as a society know too little about lawyers. We believe some myths about lawyers (for example, that they are rich), but we know little truth about them. It’s pretty strange given the two critical things lawyers do in our society: ensure access to justice and help regulate behaviour. The good news is it’s easy to learn the basics of how lawyers think, which empowers you in dealing with your lawyer and as a citizen.

The basic premise of legal reasoning is that it’s all about the courts. Everything lawyers do is about predicting the outcome of litigation that may or may not happen (at least in common law countries like Canada). That is ultimately the only thing lawyers do even though it may look like your average lawyer is busy with a million other roles. It’s clear that litigators think about litigation, but the other kind of lawyers—those who draft or vet contracts, wills, letters and applications—also always have the courts in mind. The difference is that the litigators already have a dispute on their hands, and non-litigators go out of their way to prevent a dispute.

Courts have the power to review any private or government action and decide if it’s legal. Our courts’ rulings are binding on all parties to the dispute, even the government.  Because our courts are independent and have constitutional powers, anyone can sue anyone else including the Prime Minister and have a fighting chance. This is called the rule of law, and that’s why we have so many lawyers.

Good lawyers try to think the way judges would think because lawyers have only two purposes: to prevent litigation and to win in litigation. It’s all about the courts in our legal system. In my previous essay, I asked a question about inalienable rights in Canada. It was a legal question. Its purpose was to figure out if there was any way for Canadian courts to uphold taking away of all Charter rights. I concluded that courts could technically do that, and that’s why my answer was that there were no inalienable rights in Canada.

My reasoning wasn’t political: I didn’t look at the balance of power among political parties or their inclination to attack Charter rights. It wasn’t economic: I didn’t crunch numbers to see when Canadians could no longer afford Charter rights. It wasn’t social: I didn’t look at what groups in our society would take what position on the issue. My reasoning was legal: I tried to predict what arguments could convince judges to allow the elimination of Charter rights.

The legal argument doesn’t take politics or economics into account but it’s still powerful because the courts have huge power in Canada. Court will listen to economic and political arguments (they are called policy arguments), especially in constitutional cases.   But I assumed in my previous essay that the country must be in an emergency politically and economically for the extreme legal argument against Charter rights to succeed.

So lawyers always try to predict what the courts will say, even when the police or a government ministry will most likely resolve the issue. In some areas, such as immigration, government officials have enormous discretion, and the courts often trust their judgement. In those cases, the lawyers certainly try to predict what the government official will decide, but even in those cases, lawyers know that every official is subject to judicial review. The government understands this too, and it certainly limits how far agents of the state go in their discretion. So the courts are still in the picture, at least because they leave the government alone. But they can pull the leash quickly if the government oversteps its bounds or if the courts change their interpretation of how much they should trust the government’s judgement  in the given area.

Lawyers (at least when they earn their keep) think like judges. A good legal argument resembles a judicial decision that a judge could almost copy in potential litigation. And even lawyers who draft contracts and wills think about the courts, because they try to describe their clients’ rights in words that no judge will question. That’s why Mr. Burns’s lawyer said “this should hold up in any court” handing his boss yet another evil contract in one of The Simpsons episodes.

Knowing that lawyers think in terms of disputes in courts can empower an ordinary citizen. First, when you go to court without a lawyer, you will know that you really should get one, even if it’s a law student. The courts are the be–all and end–all, and you need someone who knows what judges want to hear. Second, if you have a lawyer, it will be easier to see if he is doing a good job. Try to think of future disputes over your contract or will, and see if your lawyer is taking care of that in the text. Finally, you should know about the power of lawyers and judges because the courts are the only unelected branch of power in Canada, and you as a citizen should know why and how the system works and how to make sure it continues to work in the future.

Further reading: Frederick Schauer, Thinking like a Lawyer: A New Introduction to Legal Reasoning, (Cambridge: Harvard University Press, 2009).

(Post sponsored by AdviceScene)

Comments

11 Responses to “How lawyers think”

  1. Henning Krieg on March 6th, 2010 7:12 am

    Dear Pulat,

    you address some very interesting – and true – points in you post. It is of great importance for any “non-lawyers” having to deal with legal issues to understand how lawyers think. This will definitively improve their communication with their (or their opponent’s) lawyer, and will eventually also improve their understanding of the law as such.

    However, trying to understand how lawyers think, there is imho even more to be taken into account than what you describe as “(t)he basic premise of legal reasoning (…)” being “all about the courts.”

    It is correct that “predicting the outcome of litigation that may or may not happen” is (or at least should be) always of preeminent importance for a lawyer. However, in my personal view there is a whole list of other aspects a lawyer should think about and take into account. For example, from my perspective as a (German) business lawyer, a good lawyer should always keep in mind that in negotiations with a client’s (prospective) partner his work and attitude may and often will have a great impact on the atmosphere between the partners. For example with a view to negotiations, a good lawyer should always have a self-conception of (also) being an enabler rather than only (!) a possible eventual court room player. But – and here your view comes into play again – it is always about enabling YOUR client, which also means that the limitation of the risks for your client are always of superior importance.

    Another aspect a (prospective) client should keep in mind when trying to know how (his) lawyer(s) think(s) is that not every counsel will (always) think only about the client’s interests, but will possibly also take his own interests into account (one could of course now elaborate at length about this aspect…).

    Pulat, thank you also for the reading suggestion – I will try to get hold of a copy of Schauer’s book.

    Best regards,
    Henning

  2. brian on March 6th, 2010 8:24 am

    Re: “Lawyers Think Like Judges”

    The author writes: “Good lawyers try to think the way judges would think because lawyers have only two purposes: to prevent litigation and to win in litigation.”

    This isn’t helpful. First, it begs the obvious question “how do judges think?”. Second, like most lawyerly polemics, it is written in the abstract. And because it isn’t grounded in something (anything) concrete, it merely asserts how things should be, all the while avoiding the sometimes stark contrast one sees when she/he looks at how things actually are. In other words, this article mistakes law in text for law in practice. Even the notion that litigation lawyers want either to win litigation and/or prevent it gets quite messy if you ground the assertion in how a lot of litigation plays out.
    At the risk of being tedious – by using expert testmony – I’ll illustrate the problem.
    First, it isn’t always obvious how judges think. For example, on the subject of allowing prior adverse judicial comments to be adduced during the qualification of experts – judges are loathe to do so. Why didn’t a single judge consider Justice Dunn’s adverse judicial comments regarding Charles Smith’s ineptitude. Don’t judges trust the decisions of previous judges? Is it because all the subsequent judges refused to allow defence lawyers to adduce the judical comments that the defence lawyers didn’t bother trying to adduce Justice Dunn’s commentary to challenge Smith’s credibility/qualifications/impartiality? Or did the lawyers keep trying but the judges kept refusing? The Inquiry didn’t give an answer. In fact the question was never posed. Secondly, Dr. Smith was repeatedly qualified as a specialist in pediatric forensic pathology. And yet not a single lawyer ever pointed out that the the Royal College of Physicians of Surgeons of Canada doesn’t offer this specialty desigation – or specialty training. So why do judges think it is wise not to allow prior adverse judicial comments about expert witnesses during the qualufucation phase? Had they done so – look at all the Smith related on-going litigation that could have been avoided. And if lawyers want to win cases – why don’t they make a quick call to the medicolegal expert’s health regulator/lisencing body to confirm areas of specialty/competence? Is it because lawyer’s think judges don’t care and won’t allow prior adverse judicial comment re partisan testimony? Is it because lawyers think judges won’t allow the expert’s College registration profile to be adduced as a means to confirm/challenge qualifications? And if judges think it is a good idea to ignore what previous judges have had to say about the quality of a medicolegal expert’s testimony – why do they think that? If a lawyer wants to win a case – isn’t it a good idea to check and challenge the qualifications of opposing experts. Isn’t it a duty to do so? And yet, far, far too often – it isn’t done. Why not? The failure results in decisions being rendered based on unqualified testimony proffered by bogus expert witnesses. The legal community wants us to dismiss the Gary Carter and Charles Smith examples as anomalees. But both tainted many cases. Nobody bothered to call the CPO and ask if Carter was registered as a psychologist – or a psychological associate – as if it made no difference to them. When I mentioned Carter in a previous post – the response posted was that Carter is an unfortunate exception. How would anyone know if that is true without actually reviewing child custody cases – and checking the names of the experts who proffered medicolegal testimony against their registration profiles to confirm qualifications? This kind of wishfull thinking is analagous to the initial assurances we heard that the botched pathology in Windsor is an anolalee – just a few oh-so-rare glitches. But that was before they actually started reviewing the pathology and before previous cases/victims began to surface. Assuring the public all is well while remaining blissfully ignorant due to willfull blindness is silly – and it is dangerous – whether we are talking about botched pathology in the clinical context or boguus expert testimony in the justice context. This isn’t rocket science. Any fool (such as myself) can go to the FSCO arbitration unit site and enter the name of this or that regular medicolegal expert who proffers expert testimony in FSCO mva cases. Some names generate hundreds of hits/cases. Then the same fool can go to that medicolegal expert’s lisencing body/College site and search the member profile and read the specialty areas/competency areas in which she/he is authorized to practice. Take neuropsychology for example. The College of Psychologists of Ontario says that a psychologist must be authorized as competent in neuropsychology before proffering testimony in brain injury mva cases. And yet one can find a ton of FSCO Arbitration Unit cases that have been tainted by expert testimony proffered by psychologists whose CPO registration doesn’t include neuropsychology in list of their authorized areas of competency. So what are the FSCO Arbitrators thinking? Don’t they care if brain injured Ontario mva victims are skewered by bogus insurer experts? Is it because the Arbitrators don’t care that the plaintiff lawyers often don’t bother to check the CPO registration of the insurer’s psychological “expert” in brain injury? The LSUC won’t say. FSCO won’t say. OTLA won’t say. For that matter, the folks at this site won’t say. When I posed this question earlier it was cavalierly dismissed with a can’t happen throw-away assurance made without even looking at cases to see if it actually does happen – and with an alarming regularity. I can understand why the stakeholders don’t want to start scratching at tainted cases and looking for unqualfied experts in this way. That said, I’d hoped for more from law students who aren’t yet fully indoctrinated into the prevailing belief that if the system fails at all – it is only very rarely. That belief will only hold up for as long as you continue to refuse to actually look at cases – look at who testified as a medicolegal expert – and then look to see if their CPSO/CPO profile corresponds to the area of expertise at issue. Then, take the long list – over a hundred for one unqualified psychologist – and tell me what and how lawyers and trier of fact think. I for one would like to understand the thinking that lead to such a proliferation of unchecked, unchallenged, unqualfified “expert” testimony in the FSCO Arbitratio Unit context which has resulted in hundreds of mva victims (many with brain injuries) being screwed over by bogus expert testimony. Forget how judges and lawyers think. I’d like to know why law students think that it is beeter to myopically parrot sitting law professors, FSCO Arbitrators and practicing personal injury lawyers – rather than go look for yourselves?

  3. Pulat Yunusov on March 6th, 2010 9:55 am

    Dear Henning, thank you very much for your insightful comment!

  4. Pulat Yunusov on March 6th, 2010 9:59 am

    Brian, it’s a great comment: lots to think about. My perspective is open to debate, and one reason why I post here is to learn from those who know more than me.

  5. Willy on March 6th, 2010 3:46 pm

    Hence do the best you can to avoid going to court and being forced to hire a lawyer. The length and detail of the interesting opinions, listed above will cost thousands of dollars in billable hours. At least that is how my lawyer thinks.

  6. bria on March 8th, 2010 1:07 pm

    Sorry – I didn’t realize that checking and challenging opposing experts was a highly complex “art” form. And here I figured any idiot could call the lisencing body toll-free or go on-line and do a member profile search. This article (below)suggests much training is needed to perform this type do this complex “artistry”. My bad.
    News Toronto & GTA
    “56-cent stamp needed to stop grief:” Lawyer
    By ROB LAMBERTI, Toronto Sun

    Last Updated: March 7, 2010 8:11pm

  7. E. Bardowell on March 9th, 2010 8:30 pm

    Lawyers think differently and interpret cases based on their ability to look and analyze in a succinct manner.
    It will be helpful to distinguish between methods of interpretation and interpretative strategies (or tactics). With only minor variations, the same methods of interpretation are available to all interpreters, regardless of the nature of the system in which they operate or their role within it, although the norms of a specific constitution may allow greater or less latitude in their use of some of the techniques. In essence, the methods are: pure textual exegesis; the search for the intent of the constitution-makers as to the meaning and purpose of the provision; a search for the meaning which most satisfactorily gives effect to the values underpinning the constitution as a whole and the relevant provisions in particular; and the search for the politically or morally best possible meaning. Within each of these methods there is a range of options, which can be pursued alone or in combination with each other. For example, varieties of textual exegesis include: a search for the authoritative text, identifying and excluding improper interpolations; a search for the current meaning of the words of the text, either individually or in their textual context; a historical examination of the stages of drafting or constitutional amendment by which the current text emerged from earlier texts; and a search for changes in the meanings of the words of the text in relevant historical periods, either individually or in their textual context.

    Interpretative strategies operate at a higher normative level than the methods of interpretation. An interpretative strategy is goal-directed, allowing the interpreter to decide the kinds of outcomes that are generally to be most favoured in the constitutional structure. In the light of the strategy, interpreters adopt interpretative tactics, deciding which method or method of interpretation should be adopted in a particular case. When trying to understand an interpreter’s reasoning, one must bear in mind the possibility that the reasons he or she gives for a particular interpretation are not necessarily the reasons that led him or her to that conclusion. Some arguments are used for presentational purposes only. There is usually an obligation to justify one’s conclusion by referring to certain authoritative sources in support of it. An interpretation will carry greater authority and be more legitimate if the interpreter supports it by arguments based on those sources than if he or she ignores the need to demonstrate that the conclusion is consistent, or at least not inconsistent, with them. The need to present such a justification imposes a formal constraint on the range of possible interpretations. However, it does not dictate that a particular interpretation be adopted. This can be seen if one considers the place of interpretative reasoning in legal exegesis.

    When setting out conclusions for public consumption, the interpreter is likely to present his or her reasoning in the form of a linear argument for the preferred result. Sometimes the apparent starting-point is the constitutional text, from which the argument moves towards the conclusion by applying one or more methods of interpretation to the text in the light of the facts of the case. Occasionally, the interpreter will make his or her interpretative strategy or tactics explicit. However, published reasons are unlikely to reveal the process of reasoning which actually led to the conclusion. In reality, it is likely that the interpreter will have decided at an early stage on his or her preferred outcome, perhaps in the light of an interpretative strategy. The preferred outcome will then be tested against the text, using different methods of interpretation until one is found that will enable the interpreter to justify a result as close as possible to his or her preferred outcome. In difficult cases, there may be a fairly long route towards the final outcome as the initially preferred outcome is adjusted to fit a justifiable interpretation of the constitutional norms. This has a good deal in common with the search for ‘reflective equilibrium’ between intuitions and justifications advocated by John Rawls as an appropriate form of moral reasoning when seeking principles of justice. Then, for the public, the interpreter will be able to construct a linear argument using the preferred method of interpretation to justify something like the preferred outcome; but this is a presentational argument rather than the real argument.

    If the interpreter is part of a multi-member institution (such as a court or tribunal with several judges, or a committee of several parliamentarians), he or she must then try to persuade the other members that his or her solution should be adopted, making concessions and compromises if necessary in order to secure a majority. It will often be necessary to adjust the reasoning accordingly, particularly if the output from the court or committee must take the form of a single judgment or report, without an opportunity for individuals to express dissenting opinions. At this stage, the reasoning may become much less coherent, but the negotiations between members form part of the interpretative process in the sense that it contributes to the way in which the constitutional provision is finally given effect. The special complications that arise during interpretation by multi-member institutions merit research, although that is difficult, as the negotiations almost always take place behind closed doors and are protected by a duty of confidentiality.

    Restricting ourselves to individual interpreters, a number of factors might, hypothetically, affect the methods of interpretation chosen. We can identify six here.
    • Differences might arise from the types of the legal orders in which constitutions operate (for example, common law or civil law systems).
    • Differences might flow from the form and character of the constitution (for example, codified as opposed to uncodified constitutions).
    • The nature of the issue to be settled may give rise to different approaches (for example, questions of individual rights or of the institutional division of powers).
    • Where the interpreter is a judge, differences could arise from the institutional position of the judge who is attempting to interpret the constitution (for example, as a member of a specialist constitutional court or of an ordinary tribunal).
    • Interpretative techniques may vary according to the task which is assigned to the interpreter.
    • Differences might arise from the various kinds of outcomes and consequences of an interpretation (for example, the invalidity of a law or the political accountability of a minister).
    In the sections that follow, each of these possibilities will be briefly examined.

    Differences between the types of legal and constitutional orders

    It is sometimes supposed that lawyers from different legal traditions approach the task of constitutional interpretation in different ways. Indeed, the organizers of the round table initially suggested that this paper should explore differences between common law and civil law methods of constitutional interpretation. However, there seems to be no convincing evidence for this. Common lawyers claim to adopt a range of interpretative methods when approaching constitutions, ranging from pure textualism.
    The choice of an interpretative method is affected by other factors, including the form and history of the constitution and the judiciary’s interpretative strategy, far more than the judges’ common law backgrounds. Similarly lawyers from civil law systems appear to be capable of adopting a full range of interpretative techniques.There is a more significant difference between socialist and liberal-individualist legal orders. Socialist legal orders, on the whole, tend to treat constitutional interpretation as a means to advance an economic or social programme, rather than a specialist activity to be undertaken by professional people using the expertise of their profession independently of the other organs of the state. Under socialist constitutions, the law tends to be seen as an aspect of goal-based public administration rather than an independent location of Weberian legal professionalism. However, lawyers brought up in this tradition are still lawyers, dedicated to the use of published norms to yield and justify outcomes in individual cases. A commitment to that tradition allows those working in socialist (or formerly socialist) legal orders to communicate effectively with civilians and common lawyers in a liberal-individualist tradition, although they may reach different conclusions at times. In short, the differences between developed legal orders are less significant than the similarities between them as developed legal orders.

  8. JamesHalifax on March 10th, 2010 3:22 pm

    Do you want to know what is wrong with today’s lawyers in Canada?

    Here’s a hint:

    “two critical things lawyers do in our society: ensure access to justice and help regulate behaviour.”

    So..that’s what Lawyers think eh?

    I’m sorry, but it is not up to a lawyer to regulate my behaviour. When I was a child, it was up to my parents. Now that I am no longer a child, it is up to me.

    Law-makers, create laws to set boundaries for “mis-behaviour” We elect people to make these laws. The people of this country CHOOSE who we want to create the laws.

    Lawyers, make money when people fail to follow these laws. You regulate nothing other than your bank accounts.

    The next time someone complains about lawyers and you don’t approve of it…go back and read that line….that is the reason why.

    Get over yourselves

  9. brian on March 15th, 2010 12:48 pm

    What were the lawyers thinking who “forgot” to check Carter out with the CPO??? See current Law Times re:

    Lawyers targeted in row over expert witness
    March, 2010
    A man who says he lost custody of his children due to the testimony of a Whitby, Ont., man who allegedly falsely represented himself as a doctor of psychology in court now wants to hold lawyers and the legal system to account for his ordeal.
    Read more…

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