How to Think Like a Lawyer

I have a friend who sometimes responds to me by saying “That’s an argument only a lawyer could understand.”  I hope he’s not talking about legalese, because I hate legalese.  It is the unfortunate habit many lawyers fall into, using complicated words and expressions not likely familiar to laymen.  They also tend to use three words where one would suffice.  A lawyer may say, “I give, devise and bequest to my son, George…”  Why not just say? “I leave to my son, George…”

On the other hand, my friend may be referring to my style of discussing issues.  I have a cousin who says that she never argues or even discusses religion or politics, because people who do tend to get mad.  I love to discuss and even debate politics and religion.  I never get mad and rarely rile the emotions of whomever I’m talking with.

Whenever a lawyer hears the phrase “think like a lawyer,” his mind goes to the 1973 movie, The Paper Chase, about Harvard Law School.  Contracts Professor Kingsfield tells his first year students, “You come in here with a head full of mush and you leave thinking like a lawyer.”

A lawyer should examine all alternatives and always examine all issues from the viewpoint of his adversary.  I always try to do what the late Senator Howard Baker did. “Put your feet in his shoes. The other guy might be right.”

A good lawyer must recognize all the issues, not just one or two.  He must avoid emotional entanglement.  For instance, a criminal defendant may have confessed to a terrible crime.  No matter how revolting the crime is, the defense lawyer must center on whether the law enforcement officers have warned him of his right to remain silent, before answering any questions.

When arguing a case, a good lawyer studies the history of the issue.  He determines how similar cases have been decided in the past.  Then he tries to convince the court to follow the precedent set by the old case.  Or if the old case is not helpful, he tries to persuade the court to distinguish the old case and rule differently.

Lawyers always distrust assumptions without questioning them carefully.   The concept, “We do it that way because we’ve always done it that way,” makes me determined to find alternatives.

Lawyers accept ambiguity.  They allow flexibility.  The United States Supreme Court has decided scores of cases with issues that the framers never thought of:  same sex marriage and abortion, to name a couple.

Thinking like a lawyer does not mean you have to talk like a lawyer all the time.  Sometimes it is it good to use good judgment in what you say.  Wise, cold, logical, rational, critical speaking is usually not appropriate in personal relationships and social settings.


The results of the latest bar examination, taken in July, were just released by the Board of Law Examiners.

The examination is given twice each year and is one step which must be passed by all law school graduates, before the Tennessee Supreme Court will consider granting them the privilege to practice law in our state.  In addition, there are other requirements which I will mention below.

In July, 701 people took the test; 452 (64 percent) passed and 249 (36 percent) failed.

I am not sure what the rule is now, but when I took the test in 1965 (thanks for thinking I don’t look that old!), one could take it four times. A fourth try required special permission.  I’ve never known anyone who failed five times, but I’ve known several who failed a time or two and then went on to become excellent lawyers.

There was a saying when I was in Vanderbilt, that A students ended up teaching in a law school, B students became judges and C students made a lot of money practicing law.  I’ve never taught, although I wouldn’t mind doing it part time.  I’ve never been a judge except as a six week substitute.  As for making a lot practicing, that’s always relative.

The most interesting thing about the results of the latest bar exam is how graduates of our Tennessee law schools fared when compared with each other.  Vanderbilt, as might be expected, usually leads the group, but not this year.

Belmont University’s College of Law led the pack, with a passing rate of 94 percent. (Source: TBA Today Online Newsletter, October 12, 2015.)  Vanderbilt was second and University of Tennessee was close behind.  Nashville School of Law was last in line, but it is a night school where I believe students are there two nights a week.  Almost all of them have families and full time jobs.

In defense of my alma mater, many of Vanderbilt graduates are from other states and plan to practice elsewhere.  So they don’t study as much as those who plan to stay here.  I have a friend from Arkansas who took our exam, just for practice, then went on to become a federal judge in Little Rock.

As I have said before, Vanderbilt has the prestige to open doors if one wants to work on Wall Street, in D. C. or Atlanta.  But if he plans to stay home, he should go to a state school or Belmont.  You’ll save a big pot of money and receive just as good an education.  Belmont advertises its cost is $64,670.  Vanderbilt is $74,104.

I was surprised when Belmont announced it was starting a law school.  I thought we had plenty. But they obviously did their homework, assembled an impressive faculty and have started off with a bang.

In addition to passing the bar, an applicant for license must prove his graduation from an accredited undergraduate school and approved law school.  Also, he must submit proof of good character with references.


This column discusses legal issues of general interest and does not give legal advice on any reader’s personal situation.   The law is not a one-size-fits-all hat.   Consult a lawyer of your choice.


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