Legal reasoning is so different from other disciplines that the phrase ‘thinking like a lawyer’ has been coined. It was famously used in the Hollywood movie The Paper Chase, where a law professor says to his students: ‘You come here with minds full of mush, and leave thinking like a lawyer’. However, students rarely have minds of mush, and mostly have open minds that will take to thinking like a lawyer in a diligent and yet critical manner.

What exactly does it mean to ‘think like a lawyer’? From a narrow perspective, it means being able to read cases and statutes and use them to develop legal arguments based on issues identified from a factual matrix. From a broad perspective, it is about precise, rational, dispassionate, analytical thinking. A critical perspective would see this approach as the legal profession’s way of justifying its existence by making the law appear scientific and denying its human underpinnings. Other more cynical commentators would claim that lawyers make the most obvious and simple conclusion complicated, and by twisting and manipulate facts and words, and finding loopholes, in order to achieve an outcome that furthers the client’s interests.

In essence, we consider that there are six key aspects to thinking like a lawyer:

• Non-assumptive thinking – this involves resisting jumping to conclusions, or making assumptions. For example a lawyer would not consider whether their client is liable for breach of contract without first examining whether the contract was validly formed in the first place. Similarly, if a person was charged under crimes legislation, the lawyer would first look at the date the legislation entered into force, and the place where the law applied, before considering whether the provision applied or not.
• Facts over emotions – being able to detach from personal opinions, and personal notions of what is right and wrong. Instead, the facts are considered objectively, and the client’s case assessed against the law. The focus is on the strategy and the outcome that is sought, rather than on feelings of justice or fair entitlements.
• Tolerance of ambiguity – being able to handle the fact that there is no black and white answer, that the answer depends on how you frame the question, and that the advice you give the client can never be given with absolute confidence, because everything depends on everything else, and laws can change at any time.
• Ability to make connections between facts, documents and laws – where the average person hits information that they cannot understand and therefore cannot fit into their current knowledge, they tend to switch off from it, and reject it. Lawyers instead are able to store surplus material somewhere in their brain, and in the future when the missing piece that links it to something they know already comes along, they are able to make the connection. This is essential, for example, in litigation, where the significance of communications or documents may not be apparent on their face, but later in the litigative process links may be made when more information comes to light or when a witness gives evidence.
• Verbal mapping and ordering – being able to structure thoughts and opinions, and express them orally in a manner that is more typical of written communication, for example ‘I have three points to make. First …, Second …, and Third …, and … That is the case for the defence.’ Most people would not have three structured thoughts, but would instead have a stream of consciousness where they would raise thoughts as they had them. The mental process of verbal mapping and ordering is being able to create mental lists, or mental diagrams of relationships.

Excerpts taken from Sanson, M., Worskwick, D., & Anthony, T. (2008). Connecting with Law. South Melbourne, Vic.: Oxford University Press.