The reason lawyers are quoted for being people skilled in the circumvention (avoidance) of the law is because lawyers are skilled mavericks who have unique independent view of things. They follow a formulaic set of rules that give them the vantage point in how they approach the quandary of real life legal challenges. These processes lawyers engage in arriving at sound logical reasoning have been termed as “thinking like a lawyer”. Any neophyte in law must realize that thinking like a lawyer is beyond mastery of legal rules. Rather it requires that lawyers and law students have a major paradigm shift in their thinking processes by developing a strong line of argument in their analysis of legal problems. Here are the 5 ways to effectively think like a lawyer
(1) Accept ambiguity in legal rules
The law is dynamic in nature as is society. As a result, no rule of law is of such generality in application to know no exceptions. Exceptions are the rule in law and what may be perfectly illegal in one scenario may not be so in another scenario. Nothing is ever black or white. Taking what is another’s without that other’s consent may be stealing simpliciter, but when spousal relations exist (as between husband and wife), it ceases to be stealing. Never get frustrated when you find legal rules always in a state of flux. If it’s any comfort, it will delight you to know that the uncertainty in legal rules benefits lawyers the more. It affords you the greater flexibility to tailor your argument to cover every eventuality and better meet the needs of your clients.
(2) Never be dogmatic about a position
As lawyer sentiments and emotions are luxuries you cannot afford. Never allow yourself to get emotionally tied to a position. As an officer of the court, a lawyer’s obligation lie to the court and his clients (not his sentiments). In arriving at legal conclusions, the lawyer’s emotions must not becloud his astute sense of judgment. A lawyer must apply the law as laid down to a given set of circumstances without bias. A lawyer would understand that any form of philanthropy that involves robbing the rich to feed the destitute is stealing nonetheless however noble the intent.
(3) Argue both sides
It is always desirable to be on the winning side in law especially when legal precedents favour the premise and circumstance of your case or argument. But that isn’t always possible. Situations may exist where you cannot find a supporting rule or the current of precedent may be against your case. In such an instance, you’ll have to look at the both sides of the argument. Yours and that of your opponent. You’ll have to anticipate their case and prepare a counter argument well in advance. Even as a law student you’ll still have to follow this timely advice in your exams. Argue both sides of a rule of law since you never know which side of the argument you may see in your exams.
(4) Nothing is sacred cow so question everything
It is important that students bring a certain ragamuffin barefoot irreverence to their studies. They are not here to worship what is known but to question it.- Jacob Bronowski.
Laws no matter how clear and definite they are can never have finality unless they are interpreted upon by the courts. That is why judges are said to make laws. Behind every letter of the law lies the “popular spirits of the people” or at the very least, the “intendment of the makers”. What this means is that there are purposes for why laws exist otherwise known as “public policy”. Courts are usually called upon to make pronouncements on this. For example a rule of law may say “no one shall solicit or prostitute on the street whether at night or day”. Someone who intends circumventing this rule may decide to erect a storey building by that street and then have prostitutes parade themselves by the balcony of the house. When charged for breaking the law, they may argue that the solicitation was done “in the balcony” and not “on the street”. The courts will declare that the public policy was to prohibit the acts of prostitution in question and the fact of their geography was irrelevant. So it is only by questioning that you will discover the rationale behind every rule of law. Learn to ask “why” even when this is obvious.
(5) Know the place of technicalities
A lawyer understands that even where he has a strong prima facie case, there could still exist circumstances under law that may be fatal to his case at the trial. In law things must be done by the book. “X” is never the equivalent of “Y”. “Approximately equal to” in rounding up in mathematics has no place in law. There are different procedures for doing things in law and if you start anything by a wrong procedure your case will be struck out without the court ever listening to the justice of your case. Commence proceedings in court by “writ of summons” as against “filing a petition” as required by law and you’ve had it. That is arguing technicalities in motion. As part of thinking like a lawyer, always look to see if there has been due compliance with a rule of procedure prior to any event. Four judges sitting as against the required five and that will be fatal to their adjudicating on the case before them. (You can plead their lack of jurisdiction).
A youngish lawyer with penetrating insight, Patrick Herbert is the Editor-in-Chief and founder of Lawstudenthub, a site dedicated to helping new wigs find their footing in a trickily slippery legal profession and stay current with emerging developments in the legal industry. He holds an LLB from the University of Benin and a BL from the Nigerian Law School, Abuja. In his spare time, Patrick doubles as a professional writer and copyeditor.
If you have any urgent enquiries, you can email him @[email protected]