how do lawyers use critical thinking

Developing Critical Thinking Through the Study of Law

By major taren wellman, assistant professor, u.s. air force academy, break it down to build it up.

A Practical Approach to Develop Critical Thinking

For better or worse, the military has a reputation for breaking people down before building them back up.  The military throws recruits into immersive training programs with the end goal of replacing many individual tendencies, assumptions, and behaviors with the professional and technical skills needed to perform their jobs.  Good critical thinking [1] is a trait desired by business leaders [2] and military commanders alike [3] .  But, a gap often exists between what industry needs and what higher education produces for the work force. [4]   Educators are on the front lines of bridging this gap.   

Fig. 1.  Critical thinking’s

“micro-skills” TO DEVELOP Analogical reasoning AND ADVOCACY ¥

• Identify issue(s) in need of solving.
• Seek and summarize relevant information.
• Synthesize information from separate sources.
• Identify assumptions and deficient information.
• Evaluate the strength of an interpretation or argument.
• Evaluate how strongly a relationship or analogy supports a claim.
• Develop alternative explanations.
• Distinguish reasonable from unreasonable inferences.
• Select and apply an appropriate process to develop solutions.
• Evaluate suitable solutions to a problem.
• Explain the best solution.
• Describe how changes to the problem or assumptions may affect the solution.
• Counter anticipated alternative solutions or arguments.

¥ See note 11.

Perhaps ironically, inspiration can be drawn from this “break it down” approach in the development of critical thinking.  By identifying subskills for critical thinking and designing activities to intentionally practice these subskills, immersing students in an environment that routinely practices and requires the essential skills of critical thinking can replace more shallow habits of thought.  By breaking down the skill of critical thinking into smaller, more manageable parts and designing activities to intentionally practice the parts, educators can make real progress in producing more creative problem-solvers and deep thinkers in and out of the classroom. [5]

Critical thinking as a whole is often assessed by being broken into essential sub-skills. [6]   While overlap may exist among the varying discrete skills tested, the exact complement of skills and phrasing varies. [7]   Not all sub-skills collections are created equal—some are more easily understood and put into practice than others.  The important point for educators is that critical thinking is developed by selecting a set of critical thinking sub-skills most applicable to one’s discipline, and then explicitly communicating and reinforcing those skills for students. [8]   In order to maximize applicability to the particular discipline of law, in which analogical reasoning [9] and advocacy is paramount, I have modified one such complement of sub-skills [10] to create the thirteen essential “micro-skills” shown at Figure 1. [11]  

Each of these micro-skills is unique and can be strengthened when specifically targeted and practiced.  The challenge for educators is to design activities and assessments that require students to practice the particular sub-skills of their discipline.  When regularly practiced through activities in the context of the course’s objectives, the overall goal of building better critical thinkers becomes much more natural and manageable than it may initially seem. [12]   The purpose of this article is to provide examples of small, [13] practical steps employed in an undergraduate, core law classroom to iterate the skills that together form robust critical thinking, particularly in the areas of analogical reasoning and advocacy.  While some of these are specific to the law discipline, we believe that analogous examples for other disciplines can fairly easily be created from the ones we share here.

Critical Thinking’s Critical parts

Identify Your Discipline’s Micro-skills to Practice  

While broad definitions of critical thinking vary widely [14] , themes emerge from the varying literature of skills and competencies that combine to form the broader concept of critical thinking. [15]   Generally, these skills are grouped into categories that include evaluating information, self-aware and reflective reasoning, creative thinking, problem-solving, decision-making, and effective communication. [16]   The categories describe habits of inquiry and analysis that serve students well when applied to new and changing contexts in both an academic setting and real world problems. [17]

The thirteen “micro-skills” identified above in Figure 1 were developed by starting with a validated [18] complement of subskills, then were gently modified to maximize applicability to the particular field of law.  For example, the CAT sub-skill of “identifying additional information needed to evaluate a hypothesis/interpretation” was simplified to merely “identifying deficient information”—a condition which naturally exists in trial where perfect information is always lacking but in which the scientific term hypothesis is rarely used.  Additionally, sub-skills which are used infrequently in the field of law were omitted, such as “using basic mathematical skills” and “determine whether an invited inference in an advertisement is supported by information.”  The terminology of sub-skills can be modified, of course, to maximize application in any field of study.  The order of sub-skills matters and should be matched to the particular field as well.  They should be intentionally sequenced to typify a problem-solving methodology within the discipline.  The “micro-skills” sequence developed here generally entails progressing through problem-defining (#1), fact-finding (#2-4), idea-finding and evaluation (#5-8), and solution-finding (#9-13). 

Within a particular course, students should be provided with multiple, varying opportunities to practice the essential micro-skills, and then reinforced and improved through skill-oriented feedback.    Repetition combined with well-designed assessments and feedback lead to student growth in the areas practiced. [19]   Even if courses vary in their particular selection, phrasing, and order of micro-skills, consistent practice and feedback across multiple courses will reinforce broader critical thinking habits and skill categories.

The discipline of law is ripe for micro-skill repetition.  Law is studied through reading cases—typically a judge’s opinion solving a controversy between two parties in a proceeding.  Many, if not all, of the thirteen micro-skills often appear in sequence in a court’s written opinion.  By dissecting cases, students learn to identify the relevant (or necessary) facts on which a case depends, deduce the rules that emerge from legal precedent, and see how courts select and apply those rules in new contexts.  New law is created by the parties applying and advocating particular lines of analogical reasoning.  As such, the discipline of law is a natural fit for practicing the particular critical thinking micro-skills of Figure 1 in nearly every reading and assignment. 

In law, the problem-finding, fact-finding, idea-finding, and solution-finding process is captured by the universally-utilized “FIRAC” model. [20]   FIRAC, which stands for Fact, Issue, Rule, Analysis, and Conclusion, is the necessary components of every fully developed legal opinion, motion or court filing.  The model captures the relevant information from the controversy, informs which rule(s) apply, and demonstrates the reasoning as to how the rules are applied to solve the problem.  The model can be applied to nearly every assignment in the study of law because it represents a method of organizing thought that is widely accepted in legal writing and oral advocacy.  It is through the lens of this model that law professors are able to exercise creativity in further developing the essential micro-skills by presenting a wide variety of assignments for students.  Whether students identify the FIRAC components of the cases they read, rewrite an opinion in the FIRAC format, or develop a legal argument by delivering an opinion or brief, the model and micro-skills permeate the pedagogy.  Some of our courses’ specific implementation methods of the FIRAC model are further explained below to demonstrate implementation.  A similar model can be utilized in any discipline to aid the iteration of the discipline’s particular micro-skills. [21]

Implementing MICRO-Skill Practice

Real examples from the core law class

  Give them a Model to Apply:  FIRAC Practice

The most common method of developing critical thinking skills in the field of law is by requiring (or otherwise motivating) students to “FIRAC.”  To “FIRAC” means to distinguish the relevant [22] facts, formulate the issue, deduce the necessary rule(s) to apply, understand how the facts are applied to the rules in an analysis, and draw or identify conclusions.  The exercise can mean labeling the parts of a legal opinion, rewriting and summarizing the parts of an opinion, or creating a FIRAC by writing an opinion organized by FIRAC components.  The process necessarily requires practice in each micro-skill as outlined in the table below:

Micro-Skill Practice through the FIRAC MODEL

• FACTS: Students discriminate relevant facts from irrelevant facts, identify when more facts are needed and or reasonable inferences can be drawn, and summarize relevant facts (micro-skills #2, 4, and 8).  A summary of relevant facts are often the starting point for any legal writing or argument.
• ISSUE: Students determine the issue before the court that supplies precedential value or simply solves the controversy before the court (micro-skill #1).  Precisely isolating the issue in need of solving defines the purpose of the exercise and helps to frame the scope of rules which should be applied in the next step.
• RULES: Students identify and often synthesize from precedent the appropriate rule framework and sub-rules needed to solve the problem (micro-skills #3, 9, and 10).  Rules are the concepts which shape legal reasoning.  In a foundational law course, students are typically provided a finite set of cases from which they may derive rules as opposed to seeking rules from all possible sources.  The latter, where legal research skills are required, represents a more advanced step in critical thinking development.
• ANALYSIS: Students must evaluate arguments, draw necessary inferences, anticipate counterarguments, explain or justify an application of a rule, and explain the limits of an application as to how far the precedent extends (micro-skills #5, 6, 7, 8, 11, 12, and 13).  The deeper the analysis, the greater the strength of the overall solution in the next step.
• CONCLUSION: Students must draw conclusions and, when applicable, define the limits of conclusions (micro-skills #10 and 11).  The conclusion(s) drawn must relate back the issue(s) identified in part (b) above.

The skill of “FIRACing” is scaffolded [23] and developed over the course of a semester.  Professors press their students early on to skillfully summarize only the facts on which the case depends and explain why each fact is dispositive.  Professors demonstrate “good” issue statements and help students craft their own.  Rule frameworks are developed together with the students during class.  Analyses are broken into prompted sub-questions to push students to articulate assumptions and anticipate counterarguments.  Cumulatively across a semester in a foundational law course, students may be asked to read between 30 and 40 abridged legal opinions, write or orally deliver at least five arguments in FIRAC format, and are provided targeted feedback as to when the FIRAC is lacking in depth or thoroughness of any components.  The amount of assistance provided by the professor becomes less supportive with each of these opportunities for iteration.  By the end of the course, students are more able to independently compartmentalize the components of a legal opinion.  They can then more aptly use the rules and analyses to advance their own arguments through analogical reasoning. 

Spotlight on Problem-Identification:  Formulating the “Issue Statement”

Perhaps the most important step in complex problem-solving is to identify the issue in need of solving and apply an appropriate process to solve it. [24]   This is just as true in the law.  The “issue statement,” which may be answered as a yes or no, ultimately communicates the precedential value of the case.  A complete issue statement includes a summary of the relevant facts on which the case turns, the framework of law which supplies the rules, and the rule(s) that ultimately solve the problem.  We cannot expect students to create precise, correct issue statements without a significant amount of initial support by using a formula:

The issue in this case is whether [ necessary facts ] is/are/fit within [ the specific rule(s) that solves the problem ] under the [ law that supplies the legal framework of rules ]? 

Spotting and developing the real issue(s) before the Court is a skill developed through iteration, which occurs with every FIRAC.  It is also taught through demonstration and modeling within the cases students read as well as by the professor. 

The pivotal case of Marbury v. Madison [25] is an excellent example of issue identification and formulation.  The opinion describes the issues framed by the parties and then explains how they are not really the issues the Court must decide.  Following the Supreme Court’s identification of the real issues in need of solving, (the real issue was much broader than whether Marbury should receive his position and actually implicated the ultimate power of the Court), students learn to look behind the curtain to identify the true problem underlying the surface presentation of the controversy.  The case itself demonstrates how the arbiter must question the issues presented by the parties, and provides opportunity for students to learn what questions are useful and relevant.  The case shows a situation in which a statute does not present an acceptable solution, and asks where else could the Court look for a process or rule to apply?  Why is the Constitution a viable source for a solution?  How can Art III of the Constitution supply a rule which solves this problem?  In Marbury , the Court examines the assumptions inherent in rules of construction (i.e., a list of objects necessarily implies other objects do not fit within the category), and reframes the issue in need of solving.  This reframing ultimately enables the Court to establish the power of judicial review within the United States’ balance of governmental powers.  The importance of issue framing is thus imparted on students, sometimes on the first day of the semester, because it shaped the course of history in this particular case.

Educators may find it helpful to provide a case study, such as Marbury , early on in a course where assumptions must be explicitly questioned in order to frame and then solve the problem.  Targeting micro-skills #1, 4, and 12 early on may help avoid students framing the wrong problem or solutions based on flawed assumptions later in the course.  

Breaking Down Conclusions to Develop Depth of Analysis

Students often struggle with developing thorough analyses early on in the study of law.  Students may give conclusions based on assumptions they bring to the course without breaking down those assumptions to explain the reasoning underlying them.  An effective way to develop this skill is to identify a student’s conclusions at each step and ask them how or why they drew this conclusion.  Doing so forces the student to articulate their assumptions and inferences so that they can examine them critically. 

The scaffolding for deepening analysis can be customized to meet students where they are.  One might demonstrate to students through feedback what arguments or counterarguments they failed to address for a particular application.  Early on in the course, I may identify, or ask the student to identify, the analogies and differentiations they could have made from precedent (cases they were assigned to read), or other analogous situations from real-life, to strengthen their argument.  A critical question I pose to my students struggling with depth of analysis is, “What is the best argument that your opponent has?”  I then ask them to address that argument while maintaining strong advocacy for their original position. 

I also ask my students to develop more than one line of reasoning, or alternative justifications, for an argument or conclusion.  Often these alternatives are contingent upon their interpretations of a set of facts.  When this is the case, they should describe that contingency.  This enables students to have primary arguments and alternative arguments in the event the primary argument fails or their original interpretation of the facts was flawed.  Law educators can link this idea to real-life examples of judges’ opinions being appealed (or perhaps more pressing for students, developing a thesis in another course or merely winning an argument with a friend), to help students understand the value of evaluating the strength of multiple solutions (thus strengthening micro-skills #5, 6, 7, 10, and 11).

An additional means of teaching depth of analysis is to ask students to define the boundaries of their solution.  Does their solution fall apart when they pull the string to its logical end?  In law, educators may often encounter the “slippery slope” argument from students. [26]   But students can be pressed to draw the line where it does make sense and explain why that line works for one context and results in it not working in another context.  In other words, they must articulate the rationale behind the rule.  For example, a student may be prompted to explain why a routine traffic stop is not considered “custodial” when most drivers would not feel free to leave the interaction and drive away.  If the rule revolves around feeling free to leave, what is the underlying rationale behind this exception?  Exploring the limitations of a line of reasoning causes students to assess their own thinking and criticality.  Students are then more able to exhibit critical creativity, or generate solutions which are useful and insightful. [27]

Socratic Questioning in Class Discussion

Law school professors are notorious for Socratic questioning. [28]   This type of questioning involves calling on students without asking for volunteers, which tends to quickly reveal who has prepared for class and who has not.  The Socratic method can be anxiety-producing for students but effective at examining the process of thought through accountability.  By asking questions rather than giving answers, the educator models the inquiring, probing mind and steps into the role of the inner voice of reason. [29]   In a nutshell, the Socratic method is questioning students “so that they, in turn, analytically question what they read, write, think, and believe.” [30]   The Socratic method can be highly beneficial in non-law disciplines as well.  It encourages students to be responsible for their own learning process rather than rely on passively absorbing material provided to them in a more lecture-based format. 

What does the Socratic method look like in practice?  Students must read a case or other material prior to class and then are called upon to start the discussion (“What are the relevant facts of Marbury v . Madison?”).  Then, the discussion progresses with questions of clarification (“what do you mean by ____?”).  It utilizes questions that probe purpose (“what was your purpose when you said ____?”).  It is questioning that probes assumptions and inferences (“all of your reasoning depends on the idea that _____; why have you based your reasoning on ____ rather than ____?”).  And, it involves questions that probe causes (“why do you think that is true?” or “what led you to that belief?”). [31]   By modeling and subjecting students to Socratic questioning in the classroom, students learn to think deeply about what they read in preparation for class rather than passively attempt to memorize or otherwise absorb the content.  Socratic questioning ultimately develops critical reading in students because it helps students master the content by questioning the purpose of each word and its underlying bases or assumptions. [32]   This skill ties back to developing depth of analysis and directly targets micro-skills #5, 6, 8, 10, 11, 12, and 13.

In a foundational law course, the questions revolve around the nuance of the facts and the reasoning the court used to resolve the case.  A useful line of questioning to hone micro-skills #5, 6, and 12 is asking students to modify the facts as little as possible such that it changes the outcome of the case.  For example, an exam question may present a novel set of facts and ask students to use precedent to analyze and solve the new controversy.  Then, students are asked to change the facts such that they would arrive at the opposite result.  This exercise works in small group settings as well.  For example, I have presented my students with brief scenarios of various homicide offenses from real-life and assigned each scenario to a small group.  I then ask them to collaborate to identify the most appropriate crime and then modify the facts to make them fit the homicide offenses they did not select.  Training students to exercise this skill themselves as they critically read develops the ability to recognize the boundaries of rules and the logical conclusions of their own reasoning.  Understanding the consequences of a solution creates a better problem-solver because the student can anticipate second and third order effects of their reasoning, which ultimately helps to reveal the best solution. [33]

  Collaborative Assignments and Role-Playing

Collaborative learning combines two key goals: learning to work and solve problems in the company of others, and sharpening one’s own understanding by listening seriously to the insights of others, especially those with different backgrounds and life experiences. [34]  Approaches range from study groups within a course, to team-based assignments and writing, to cooperative projects and research. [35]   Collaborative assignments are a high-impact practice to develop critical thinking. [36]   Having multiple perspectives to analyze a problem often produces a deeper, broader, and fairer solution.

A step beyond working collaboratively is imaginatively placing oneself in the shoes of another through role-playing.  Role-playing requires students to demonstrate intellectual empathy and defend beliefs other than their own. [37]  

To combine the power of both high-impact practices, educators can place students into collaborative partnerships but with opposing roles assigned.  In a foundational law course, this might look like assigning one student to advocate a position as the government prosecutor and their collaboration partner as their opposing criminal defense counsel.  The advocacy might take the form of a 5-10 minute oral argument or written essay (or “motion”) to the Court.  The opposing pair of students are explicitly allowed to collaborate on the assignment where normally they would not be permitted to collaborate with any other students.  This kind of collaboration encourages original thought, because each has to bring their own ideas to the table (because each ultimately wants a different outcome).  It also allows students to strengthen each other’s analytical reasoning by exploring and sharing the best arguments for their side.  For example, one of the ways I have taught my students to strengthen their analyses is to address counterarguments.  This particular activity allows them to explore counterarguments by listening to their opposing counsel partner.   It reaps all the benefits of the collaborative exchange of ideas with individual accountability built into the assessment.  The students do not receive the same grade like they would on most group projects, but they are also not in direct competition in a zero-sum game because they can each earn a top score despite wanting different conclusions.  The stronger their contribution to the partnership, the better both of them will likely do on the assignment.  Such a construct allows students to use each other in developing micro-skills #5, 6, 8, 10, and 13. 

An additional benefit is that students directly observe their own growth in these micro-skills because they are more accessible when demonstrated by a classmate of similar skill level as opposed to demonstration or feedback by a professor.  Student A gets to question partner student B while she is working through understanding the scenario and developing her own argument.  Student A then gets to see student B develop multiple possible lines of argument to advance her position, and student A is even able to contribute her own ideas.  They can test each other’s rationale and pose examples to each other from their own experiences.  At the very least, if student A is struggling with breaking down conclusions and explaining rationale, student A is at least able to hear student B’s arguments and ensure she addresses those counterarguments in her own assignment.  By working through this process together but with opposite goals, the analyses both improve from diverse thought and with a much-reduced risk of inequitable work distribution or inflated grading.  Students are also better able to appreciate their own growth by seeing the process at work without any or with less aid from a professor.   

Emphasizing Inclusivity, Diversity, and Examining the Broader Context

While targeting the micro-skills, it is important to periodically and consistently take a step back and encourage students to draw connections between the discipline and the world around them.  This might include asking students to examine their own unique experiences and how these experiences affect their interpretation of the material.  Educators might consider the use of discussion boards, self-reflection journals, or old-fashioned classroom discussion to encourage such metacognition. 

The study of law with its cases and controversies stemming from real-world conflict naturally lends itself to explicitly question the human mind and its “native prejudicial tendencies.” [38]   Examining context surrounding legal controversies creates space for students to develop intellectual courage by fairly examining underlying beliefs and emotions. [39]   This helps students begin to understand and “guard against […] egocentric and sociocentric tendencies.” [40]

An example of putting this into practice is focusing on a particular case with underlying themes or emotions relatable to students.  One such topic in most foundational law courses includes the progeny of cases dealing with diversity in higher education.  What assumptions have your students formed from their own backgrounds and experience in applying for college or law school?  I simply ask my students to think about how their own experiences or emotions complement or conflict with the Court’s evaluation (in which the Court finds that the goal of achieving racial diversity in the classroom is a compelling government interest)?  Despite any personal disagreement, can the student apply the precedential framework and fairly evaluate (and even advocate) for a schema which benefits an applicant based on diversity?  Before we even begin these questions, I introduce my students to the history of equal protection in America.  At the end, I ask them to examine how their initial opinions about controversial topics like affirmative action and equality of opportunity might have changed after studying this block of instruction. 

Examining the broader context that frames a particular substantive topic challenges students to think deeply about the history of the discipline and the controversies within it.  It causes students to question how context shapes outcomes. [41]   This metacognitive work and intentional design in the learning activity fosters connections between disciplines (e.g., law, political science, and history) and reflection with one’s own assumptions and background.  Prior to diving into the nuance of a topic, consider asking students to take a step back and reflect on the context.  Educators can do so with additional readings, short videos, in-class lecture, Socratic questioning, powerful photos or art, or with a salient podcast.  It will foster a more objective view of an interpretation or solution, and in doing so will pay dividends in developing micro-skills #5, 6, 7, and 12.

The preceding examples are a few ways to design instruction and educational activities to maximize micro-skill practice specific to the study of law.  However, educators should not shy away from crafting a set of critical thinking subskills from peer-reviewed and validated sources which are most applicable to their discipline in order to develop critical thinking in students.  Educators can even gently modify the language of the subskills to increase accessibility and application within the field.  Regardless of how educators put their micro-skills into practice, having the intentional objective of practicing one or more of the skills with each activity, and then providing meaningful subskill-focused feedback, will lead to cumulative overall growth in critical thinking in students.  

PA#: USAFA-DF-2020-254

[1] Critical thinking has varying definitions.  The U.S. Air Force Academy defines critical thinking as the process of self-aware, informed, and reflective reasoning for problem-solving and decision-making in the absence of ideal information.  U.S. Air Force Academy, Outcomes: Critical Thinking, https://www.usafa.edu/academics/outcomes/ (last visited Jun. 6, 2020).

[2] Raising the Bar: Employers’ Views on College Learning in the Wake of the Economic Downturn, Ass’n of Am. C. & U. (2010), available at https://www.aacu.org/ sites/default/files/files/LEAP/2009_EmployerSurvey.pdf.

[3] See , e.g. , Carl Von Clausewitz, On War 112 (Michael Howard et al. eds., Princeton NJ:  Princeton University Press, 1976).

[4] Raising the Bar, supra note 2, at 1, 5-6.

[5] Ilea Heft & Lauren Scharff, Aligning Best Practices to Develop Targeted Critical Thinking Skills and Habits, Journal of the Scholarship of Teaching and Learning, Vol. 17, No. 3 (July 2017), 48-49, 64.

[6] See , e.g. , CAT Skills Checklist, Tenn. Tech Univ. Center for Assessment and Improvement of Learning (2019), https://www.tntech.edu/cat/pdf/training/CAT_App_Presentation.pdf; California Critical Thinking Skills Test (CCTST), https://www.insightassessment.com/article/california-critical-thinking-skills-test-cctst-2; and .

[7] Id. ; see also Richard Paul & Linda Elder, Critical Thinking Competency Standards, The Foundation for Critical Thinking (2007), 47-51.

[8] Ilea Heft & Lauren Scharff, Aligning Best Practices to Develop Targeted Critical Thinking Skills and Habits, Journal of the Scholarship of Teaching and Learning, Vol. 17, No. 3 (July 2017), 51-52.

[9] “Reasoning by analogy involves identifying a common relational system between two situations and generating further inferences driven by these commonalities.”  Dedre Gentner & L. Smith, Analogical Reasoning, Encyclopedia of Human Behavior (2d Ed.), (2012), 130.  Available at http://groups.psych.northwestern.edu/gentner/papers/gentnerSmith_2012.pdf.

[10] The sub-skills referenced are those measured by the Critical Thinking Assessment Test (CAT).  The CAT is a standardized critical thinking test created by the Center for Assessment and Improvement of Learning, Tennessee Technological University, funded by National Science Foundation grants.  Additional information is available at https://www.tntech.edu/cat/pdf/training/CAT_Introduction.pdf.

[11] This particular complement of “micro-skills” relies primarily upon the CAT Skills Checklist, Tenn. Tech Univ. Center for Assessment and Improvement of Learning (2019), https://www.tntech.edu/cat/pdf/training/CAT_App_Presentation.pdf.   It is also influenced by Richard Paul & Linda Elder, Critical Thinking Competency Standards (2007), & the Critical Thinking White Page, U.S. Air Force Academy (2018), http://www.usafa.edu/app/uploads/Critical-Thinking-White-Paper-Update-approved-Spring-2018.pdf, citing Essential Learning Outcomes, the Am. Ass’n of C. and U., https://www.aacu.org/sites/default/files/files/LEAP/ EssentialOutcomes_Chart.pdf.

[12] CAT Instrument Technical Information Sheet, Tenn. Tech Univ. (2016), https://www.tntech.edu/cat/about.php.

[13] “Small” refers to “simple, incremental steps” or techniques teachers may implement more easily than dramatic changes or overhauls in pedagogy. James M. Lang, Small Teaching 1, 3 (2016).

[14] Critical Thinking in the Online Classroom, Center for Teaching and Learning (Jun. 6, 2020), https://ctl.wiley.com/critical-thinking-online-classroom/.

[15] See , e.g. , Peter Facione, Critical Thinking:  What It Is and Why It Counts (2020), 11, available at https://www.insightassessment.com/wp-content/uploads/ia/pdf/whatwhy.pdf; and Richard Paul & Linda Elder, Critical Thinking Competency Standards, The Foundation for Critical Thinking (2007), 47-51.

[16] See , e.g., Skills Assessed by the CAT Instrument, Tenn. Tech Univ., https://www.tntech.edu/cat/about.php (Jan. 16, 2020); Critical Thinking White Page, U.S. Air Force Academy (2018), http://www.usafa.edu/app/uploads/Critical-Thinking-White-Paper-Update-approved-Spring-2018.pdf; and Peter Facione, Critical Thinking:  What It Is and Why It Counts (2020), 11, available at https://www.insightassessment.com/wp-content/uploads/ia/pdf/whatwhy.pdf.

[17] Critical Thinking VALUE Rubric, Ass’n of Am. C. & U., available at https://www.aacu.org/sites/default/files/files/VALUE/ CriticalThinking.pdf.

[18] CAT Instrument Technical Information (2014), Tennessee Technological University, available at https://www.tntech.edu/cat/pdf/CAT_Tech_Info_V8.pdf.

[19] Linda Elder & Richard Paul, The Thinker’s Guide to Analytic Thinking 6, The Foundation for Critical Thinking (2012); George D. Kuh, High Impact Educational Practices:  What They Are, Who Has Access to Them, & Why They Matter 18 (2008) (“repeated practice—at progressively higher levels of challenge and engagement—is the surest key to high levels of achievement”).

[20] The model may have slight variances like reversing the order of issue and fact, or including a rule explanation component.  The variances depend, for example, on the rules of court or simply a professor’s preferences.  See , e.g. , The IFRAC Structure of Court Opinions, Case Briefs, and Essay Writing, Nathenson (2016), https://nathenson.org/docs/civpro/IFRAC.pdf.

[21] The model, regardless of particular phrasing or terminology within the discipline, should help students to isolate the problem or question to be answered, identify the purpose of addressing the problem, describe the information needed to answer it, identify the important assumptions or concepts underlying the problem, develop potential solutions and implications of the solutions, and select the best solution.  Richard Paul & Linda Elder, Guide to Critical Thinking 34-35, The Foundation for Critical Thinking (2009).

[22] “Relevance” in this context are the facts on which the court’s opinion depends.  If a relevant fact is changed, it could change the outcome of the case.

[23] The process of adding supports to enhance learning by building upon skills and experiences and then gradually removing the supports as the students master tasks.  IRIS Center Module, Vanderbilt U. (2020), available at https://iris.peabody.vanderbilt.edu/module/sca/cresource/q1/p01/.

[24] Richard Paul & Linda Elder, Guide to Critical Thinking 22, The Foundation for Critical Thinking (2009).

[25] 5 U.S. 137 (1803).

[26] The argument is essentially that a rule is incorrect because while it makes sense in one context, it no longer makes sense in other context.

[27] Paul, Richard & Linda Elder, Critical & Creative Thinking, The Foundation for Critical Thinking (2012).

[28] See , e.g. , The Paper Chase.  Twentieth Century-Fox Film Corp.  New York, N.Y.:  CBS/Fox Video (1973).

[29] Richard Paul & Linda Elder, How to Improve Student Learning:  30 Practical Ideas 44, The Foundation for Critical Thinking (2014).

[30] The Foundation for Critical Thinking:  Workshop Descriptions (Jun. 6, 2020), available at https://www.criticalthinking.org/pages/professional-development-workshop-descriptions/437#3130.

[31] Richard Paul & Linda Elder, The Art of Socratic Questioning 20-23, The Foundation for Critical Thinking (2007).

[33] Linda Elder, Diversity:  Making Sense of It Through Critical Thinking, The J. for Quality & Participation (Winter 2004), available at http://asq.org/pub/jqp/past/2004/winter/jqp0105inmyview.pdf.

[34] George D. Kuh.  High-Impact Educational Practices:  What They Are, Who has Access to Them, and Why They Matter . Ass’n of Am. C. & U. (2008), 9-10.  Available at https://www.aacu.org/leap/hips.

[36] “High impact” means widely tested and proven beneficial.  Id.

[37] Richard Paul & Linda Elder, Critical Thinking Competency Standards 29, The Foundation for Critical Thinking (2007).

[38] Linda Elder, Diversity:  Making Sense of It Through Critical Thinking, The J. for Quality & Participation (Winter 2004), available at http://asq.org/pub/jqp/past/2004/winter/jqp0105inmyview.pdf.

[39] Richard Paul & Linda Elder, Critical Thinking Competency Standards 28, The Foundation for Critical Thinking (2007).

[40] Linda Elder, Diversity:  Making Sense of It Through Critical Thinking, The J. for Quality & Participation (Winter 2004), available at http://asq.org/pub/jqp/past/2004/winter/jqp0105inmyview.pdf.

[41] Ken Bain.  What the Best College Teachers Do 25 (2004).

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What, Why, How? Is Critical Thinking Important in a Law Degree?

As a law student you may well have had feedback on assignments asking you to “explain your reasoning”, “add in more analysis and evaluation” or even “be more critical”. What this means is that your marker is looking for you to demonstrate more critical thinking skills. So, what is critical thinking and how does it relate to the law degree? Emma Jones, lecturer in law and member of the Open Justice team at the Open University explains for Lawyer Monthly.

What critical thinking is…

Put simply, critical thinking is about gathering evidence, ideas and/or arguments and then evaluating (weighing up) their strengths and weaknesses in an objective and methodical manner. For example, when writing an essay you could be presented with an article arguing that the Human Rights Act 1998 should be repealed. To assess its validity you need to spend some time identifying the key arguments contained it in. Depending on their content, you might then have to re-examine parts of the Act (or other relevant Acts and cases) used in the argument, search for counter-arguments in other articles and then decide which provide the most persuasive evidence.

When tackling a problem scenario, it may involve reading the facts with an open mind, identifying key information, comparing the information you have with the facts of relevant cases and considering any arguments the other party or parties may come up with.

… And what it isn’t

Sometimes students think that showing critical thinking involves including lots of quotations from cases or academic articles and putting in a lot of references. This might show you have found plenty of information, but it doesn’t demonstrate that you understand it or can apply it to whatever topic you’re discussing. Some students may go one step further and explain arguments they find in such cases or articles in their own words. However, while it is important to look at all the relevant arguments, critical thinking is more than that. You need to evaluate the arguments yourself and decide how strong you think they are. In other words, you need to put your own spin on them, rather than just describing them.

Using critical thinking in your studies

Here are some suggestions on how to incorporate critical thinking into your legal studies:

• Don’t make assumptions! Always question what you are told and what you are reading.
• Read around a topic. Don’t just focus on the set textbook or case, try to put it into a wider context so you appreciate its importance or relevance.
• Spend time discussing and debating topics with fellow law students. Whether this is in seminars, during coffee or using online forums, this will help you process your own ideas and absorb other points of view.
• Give yourself time to reflect. If you’ve read something, spend some time identifying its key arguments, but then make sure you pause and think about whether or not you agree and why.
• Try to interweave different arguments within your writing. If you write a couple of paragraphs of arguments “for” and a couple of paragraphs “against” it can be quite dull to read and doesn’t help you evaluate their comparative strengths. Taking one argument and exploring the “for” and “against” elements in one paragraph is much stronger.
• Use some key phrases in your writing which demonstrate your critical thinking. For example, “evaluating these points leads to the conclusion that…” or “an analysis of these sources indicates…”.
• Take on board feedback. If you are being told to use more critical thinking, the likelihood is your marker will have included some comments which indicate what that mean by that and how you could have approved. Spend time absorbing these and reflecting on what you can do differently next time.

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Apr 16, 2024

Written By Emily Hindle

10 Critical Thinking Skills Every Lawyer Must Master

In the legal profession, the ability to think critically is indispensable. Lawyers are tasked with analysing complex legal issues, crafting persuasive arguments, and making sound decisions that can have far-reaching consequences. In this article, we will delve into 10 critical thinking skills that every lawyer must master in order to excel in their profession.

Analytical Reasoning

At the heart of legal practice is the ability to efficiently solve complex legal issues with quick reasoning and precision. Lawyers must possess the skills to break down convoluted issues into manageable components, discerning the underlying principles that govern them.

As well as this, identifying pertinent facts from a large amount of information and recognising patterns within legal cases are indispensable skills that enable attorneys to craft effective strategies and anticipate potential outcomes.

Problem-Solving

As a lawyer, effective problem-solving demands the ability to deconstruct issues into smaller, more digestible parts, evaluating various options and selecting the most prudent course of action based on the specific circumstances.

By weighing the advantages and disadvantages of each solution, lawyers can chart a path forward that best serves their clients' interests in both the short and long term.

Logical Reasoning

Constructing sound legal arguments involves applying deductive and inductive reasoning to formulate persuasive assertions supported by evidence and legal precedent and is a really important skill for any lawyer to have!

As well as this, identifying flaws in opposing arguments requires analysing the logic and evidence presented by the opposing party and exposing any inconsistencies or fallacies.

Applying logical principles to legal analysis involves the consideration of rules of inference and logical reasoning to interpret statutes, regulations, and case law accurately.

Research Skills

Conducting thorough legal research involves utilising various resources such as statutes, regulations, case law, legal databases, and scholarly articles to gather relevant information.

Evaluating the credibility of sources involves assessing the authority, accuracy, objectivity, and currency of the information obtained to ensure its reliability.

Lastly, synthesising this information from various sources involves integrating diverse perspectives and various complex legal concepts to develop a comprehensive understanding of the issues at hand.

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Attention to Detail

Noticing nuances in legal documents and contracts requires meticulous precision to identify potential ambiguities, inconsistencies, or errors that could impact their interpretation or enforceability.

Avoiding such errors involves carefully reviewing documents for accuracy, completeness, and compliance with procedural and substantive requirements.

When reviewing evidence and documents it is essential that each detail is thoroughly considered to uncover relevant information or identify discrepancies that may affect the outcome of a case.

Thinking outside the box to find innovative legal solutions involves approaching legal problems from unconventional angles and considering alternative strategies that may not be immediately apparent.

As well as this, crafting persuasive arguments that stand out requires creativity in presenting legal concepts in a compelling and memorable manner that resonates with judges, juries, and other stakeholders.

Adapting to unexpected legal challenges with creative approaches involves thinking on one's feet and devising innovative solutions to overcome obstacles and achieve optimal outcomes for clients.

Decision-Making

Weighing the pros and cons of different legal strategies requires carefully considering the potential risks, benefits, and ethical implications of each option before making a decision.

Making informed decisions under pressure requires you to maintain composure and clarity of thought in high-stakes situations, such as during negotiations, hearings, or trials.

Considering ethical implications in decision-making is also essential, requiring you to balance the interests of various stakeholders while upholding ethical principles and professional standards of conduct.

Communication Skills

Articulating legal concepts clearly and persuasively involves conveying complex ideas in a manner that is accessible and compelling to diverse audiences, including clients, judges, jurors, and colleagues.

Tailoring communication to different audiences means adapting your language, tone, and style to suit the preferences and expectations of various stakeholders. For example, using layman's terms when explaining legal concepts to clients.

Active listening in legal consultations and courtroom settings requires attentively listening to the concerns, questions, and feedback of clients, witnesses, opposing counsel, and judicial officers to gather relevant information and effectively address their needs.

Time Management

Prioritising tasks effectively in a fast-paced legal environment involves assessing the urgency and importance of various assignments and allocating time and resources accordingly.

Additionally, meeting deadlines for legal filings and court appearances also requires careful planning, organisation, and time allocation to ensure timely completion and submission of required documents and appearances.

To manage your workload efficiently and avoid burnout, you should aim to balance your professional responsibilities with personal well-being, implementing strategies to prevent excessive stress and fatigue, such as setting realistic goals, delegating tasks, and maintaining a healthy work-life balance.

Ethical Reasoning

To uphold professional ethics and integrity, you must adhere to the ethical standards and principles outlined in the legal profession's codes of conduct and regulations.

Balancing competing interests while maintaining ethical standards involves navigating conflicts of interest, confidentiality obligations, and other ethical dilemmas with integrity, honesty, and transparency.

Lastly, resolving ethical dilemmas with integrity and transparency requires carefully considering the ethical implications of various courses of action and choosing the option that aligns with one's moral values and professional responsibilities, even in the face of adversity or pressure.

In conclusion, the 10 critical thinking skills discussed in this article are essential for success in the legal profession. By mastering these skills, lawyers can effectively analyse complex issues, devise strategic solutions, and advocate for their clients' interests with confidence and competence. 

As an aspiring lawyer you should aim to develop and hone these skills throughout your legal education and career, to excel in this challenging and rewarding profession!

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36 Legal Reasoning

Barbara A. Spellman, Department of Psychology and School of Law, University of Virginia, Charlottesville, VA

David and Mary Harrison Distinguished Professor of Law, University of Virginia, Charlottesville, United States

• Published: 21 November 2012
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The legal profession has long claimed that there are process-based differences between legal reasoning—that is, the thinking and reasoning of lawyers and judges—and the reasoning of those without legal training. Whether those claims are sound, however, is a subject of considerable debate. We describe the importance in the legal system of using categorization and analogy, following rules and authority, and the odd task of “fact finding.” We frame these topics within the debate between two views of legal reasoning: the traditional view—that when deciding a case, judges are doing something systematic and logical that only legally trained minds can do; and the Legal Realist view—that judges reason in much the same way as ordinary people do, and that they first come to conclusions and then go back to justify them with the law rather than using the law to produce their conclusions in the first place.

Introduction

In the 1973 film The Paper Chase , the iconic Professor Kingsfield announced to his class of first-year law students: “You teach yourself the law. I train your minds. You come in here with a skull full of mush, and if you survive, you'll leave thinking like a lawyer.” In claiming to teach students to think like lawyers, Kingsfield echoed the assumptions of centuries of legal ideology. In the 17th century, the great English judge Edward Coke glorified the “artificial reason” of the law (Coke, 1628 , ¶ 97b), and from then until now lawyers and judges have believed that legal thinking and reasoning is different from ordinary thinking and reasoning, even from very good ordinary thinking and reasoning. Moreover, the difference, as Kingsfield emphasized, has long been thought to be one of process and not simply of content. It is not only that those with legal training know legal rules that laypeople do not. Rather, lawyers and judges are believed, at least by lawyers and judges, to employ techniques of argument, reasoning, and decision making that diverge from those of even expert nonlawyer reasoners and decision makers.

Our chapter begins by describing three important distinctions: between what people typically mean by “legal reasoning” and other types of reasoning that occur in the legal system; between two competing views of how such reasoning is done; and between law and fact. The heart of the chapter deals with four thinking and reasoning processes that are common in legal reasoning: following rules, categorization, analogy, and fact finding. We then discuss whether legal decision making requires particular expertise and examine some of the peculiarities of legal decision-making procedures generally. We end with some ideas for future research.

The Who, How, and What of Legal Reasoning

What is meant by “legal reasoning”? Who does it, how is it done, and which parts of it do we think are unique? We sketch answers to these questions in the text that follows.

“Legal Reasoning” Versus Reasoning Within the Legal System

Legal reasoning, strictly speaking, must be distinguished from the full universe of reasoning and decision making that happens to take place within the legal system. Juries, for example, make decisions in court that have legal consequences, but no one claims that the reasoning of a juror is other than that of the ordinary person, even though the information that jurors receive is structured by legal rules and determinative of legal outcomes. There has been extensive psychological research on jury decision making (for example, Diamond & Rose, 2005 ; Hastie 1993 ), and we discuss some of it in this chapter in the section on “Fact Finding.” But when Coke and Kingsfield were glorifying legal reasoning, they were thinking of lawyers and judges and not of lay jurors. Similarly, police officers, probation officers, and even the legislators who make the laws are undeniably part of the legal system, yet the typical claims about the distinctivenessof legal reasoning do not apply to them. Clearly, the institutions and procedures of the legal system affect decision making, but the traditional claims for the distinctiveness of legal reasoning go well beyond claims of mere institutional and procedural differentiation. The traditional claim is that certain legal professionals—lawyers and judges—genuinely reason differently, rather than employ standard reasoning under different institutional procedures.

Thus, the term “legal reasoning” refers to reasoning by a subset of people involved in the legal system; it also refers to a subset of what that subset of people reason about. Television portrayals notwithstanding, a large part of what lawyers do consists of tasks such as negotiating, drafting contracts, writing wills, and managing noncontested dealings with the administrative bureaucracy. These lawyers' functions are important in understanding the legal system in its entirety, yet they are rarely alleged to involve distinctive methods of thought, except insofar as they are performed with an eye toward potential legal challenges and litigation. Therefore, we focus in this chapter on trials and appeals because that is the domain about which claims for the distinctiveness of legal reasoning are most prominent.

Two Views of Legal Reasoning

In this chapter we examine forms of reasoning that are allegedly concentrated in, even if not exclusive to, the legal system. But we also address the long history of skeptical challenges to the legal profession's traditional claims about the distinctiveness of its methods. From the 1930s to the present, theorists and practitioners typically described as Legal Realists (or just “Realists”) have challenged the belief that legal rules and court precedents substantially influence legal outcomes (Frank, 1930 ; Llewellyn 1930 ; Schlegel 1980 ). Rather, say the Realists, legal outcomes are primarily determined by factors other than those that are part of the formal law. These nonlegal factors might include the personality of the judge, for example, as well as the judge's moral and political ideology and her reactions to the facts of the particular situation presented.

The Realists' claim that such nonlegal considerations are an important part of judicial decision making should come as little surprise to most psychologists. After all, the Realist challenge is largely consistent with the research on motivated reasoning (Braman, 2010 ). Because decision makers are often focused on reaching specific desired conclusions, the motivation to reach an antecedently desired conclusion will affect their information search and recall, as well as other components of the decision-making process (Kunda, 1987 , 1990 ; Molden & Higgins, 2005 ; Chapter 20 ). Insofar as this research is applicable to judges, then, the Realists would claim that judges are frequently motivated to reach specific outcomes in specific cases for reasons other than the existence of a relevant legal rule. They might, for example, sympathize with one party in the particular case. Or they might believe, more generally, for example, that labor unions should ordinarily prevail against corporations (Kennedy, 1986 ), or that the police should be supported in their fight against typically guilty defendants, or that commerce flows more smoothly if the norms of the business community rather than the norms of the law are applied to commercial transactions (Twining, 1973 ). These nonlegal and outcome-focused motivations, say the Realists, would lead judges to retrieve legal rules and precedents selectively in light of that motivation, locating and using only or disproportionately the rules and precedents supporting the result generated by their nonlegal outcome preferences in a particular dispute.

Indeed, the same point is supported by the research on confirmation bias (see Nickerson, 1998 , for a review). This research teaches us that both novice and expert decision makers are inclined to design their tasks in ways that yield results consistent with their initial beliefs (Fiedler, 2011 ). In light of what we know about motivated reasoning and confirmation bias, therefore, it is plausible that judges often consult the formal law only after having tentatively decided how the case, all or many things other than the law considered, ought to come out. The judges would then select or interpret the formal law to support outcomes reached on other grounds, as the Realists contend, rather than using the formal law to produce those outcomes in the first place, as the traditional view of legal reasoning maintains.

The traditional view of “thinking like a lawyer” does not deny that motivated reasoning and confirmation bias influence the decisions of ordinary people. It does deny, however, that these phenomena are as applicable to expert legal reasoners as they are to laypeople. Indeed, it is telling that nominees for judicial appointments, especially nominees to the Supreme Court testifying before the Senate Judiciary Committee at their confirmation hearings, persistently pretend not to be Realists. They deny that any policy or outcome preferences they might happen to have will influence their judicial votes, claiming instead that their job is simply to follow the law. 1 The judicial nominees thus join the claims of Kingsfield and countless others that the forms of thinking and reasoning that characterize human beings in general are exactly the forms of thinking and reasoning that lawyers and judges are trained to avoid. Whether such avoidance can actually be taught or actually occurs, however, are empirical questions, and not the articles of faith they were for Kingsfield. The question of whether lawyers and judges really are better than laypeople at avoiding the consequences of motivated reasoning, confirmation bias, and other impediments to law-generated results is one that lies at the heart of the traditional claims for the distinctiveness of legal reasoning. In this chapter, we consequently discuss not only the traditional view of legal reasoning but also the research examining the extent to which the model of reasoning described by the traditional view accurately characterizes the arguments of lawyers and the decision making of the judges to whom they argue.

The Distinction Between Law and Fact

The distinction between questions of law and questions of fact is crucial to understanding legal decision making. Indeed, questions of fact are primary in important ways, because the initial question in any legal dispute is the question of what happened—the question of fact. How fast was the Buick going when it collided with the Toyota? Who came into the bank with a gun and demanded money from the teller? Did the shopkeeper actually promise the customer that the lawnmower she bought would last for 5 years? In typical usage we think of “facts” as things that are known to be true. But in the courtroom, relevant facts may be unknown or in dispute. Thus, the first thing that the “trier of fact,” be it jury or judge, must do is “fact finding”—that is, deciding what actually happened.

Knowing what happened is important and preliminary, but knowing what happened does not answer the legal question—the question of what consequences flow from what happened. If a prospective employee proves that the company that did not hire him refuses to hire anyone over the age of 50, has the company violated the law, and, if so, what is the penalty? If the defendant in a murder case drove a getaway car but did not shoot anyone, is he subject to the same criminal penalty as an accomplice who actually did the shooting? If the Buick that someone purchased from a Buick dealer turns out to be defective, is the dealer responsible or only the manufacturer?

In the United States it is common to think of juries as determining questions of fact and judges as deciding questions of law. However, this simple dichotomy is misleading. Although juries generally do not decide questions of law (though they are required to apply the law to the facts in order to reach a verdict), judges do decide questions of fact. In many countries, there are no juries at all. And even though most countries with a common-law (English) legal heritage have juries for many criminal trials, only in the United States are there still juries for civil lawsuits between private parties.

Even in the United States, juries are far less common than one would suspect from television portrayals of the legal system. Partly because of settlement and plea bargaining, partly because only certain types of cases involve the right to a jury, partly because sometimes the opposing parties agree to have a judge decide the case, partly because of alternative dispute resolution, and partly because many cases are dismissed or otherwise resolved by judges on legal grounds before trial, jury trials are rare. In fact, only about 1% of initiated cases in the United States reach trial at all, and many of those are tried by a judge sitting without a jury (Galanter, 2004 ). Often, therefore, the issues of fact as well as law are decided by the judge.

And even when there is a jury, many preliminary factual issues will have been decided by the judge. In criminal cases, for example, factual questions about arguably illegal searches and seizures or confessions—Did the police have probable cause to conduct a search? Was the defendant given the requisite warnings before being interrogated?—are determined by the judge. In civil cases with a jury, judges decide many issues of fact in determining preliminary procedural issues and making rulings on the admissibility of evidence—Did the defendant answer the complaint within the required 20-day period? Can an expert in automobile design testify as an expert about tire failure?

The psychological issues implicated by decisions about disputed questions of fact are not necessarily the same as those involved in determining what the law is. And thus we deal separately, much later, with the psychology of factual determination in law. For now, however, it is worth noting that many of the claims about a distinctively legal reasoning pertain to the resolution of uncertain questions about the law rather than about what happened. Determining what the law requires, especially when the law is uncertain, involves the kind of legal reasoning that Kingsfield celebrated and Supreme Court nominees endorse. Learning how to make such determinations is a large part of the training of lawyers, and a substantial component of legal practice, especially in appellate courts. It is precisely when rules or precedents are unclear or generate uncomfortable outcomes that the use of rules, precedents, analogies, and authority becomes most important, and these are the forms of reasoning that are central to the alleged distinctiveness of legal reasoning. We turn to those forms of reasoning now.

Following, applying, and interpreting formal, written, and authoritative rules, as well as arguing within a framework of such rules, are important tasks for lawyers and judges, and they are consequently emphasized in the standard picture of legal reasoning. The psychology literature does not address this kind of rule following per se; however, to a psychologist the processes involved in deciding “easy” cases seem to involve deductive reasoning (see Evans, Chapter 8 ), whereas those for “hard” cases seem to involve categorization (see Rips et al., Chapter 11 ) and analogy (see Holyoak, Chapter 13 ).

The distinction between easy cases and hard cases is widely discussed in the legal literature. In an easy case, a single and plainly applicable rule gives unambiguous guidance and, as applied to the situation at hand, appears to give the right result. Suppose a law says: “If someone does A, then he gets consequence B.” Richard comes along, blatantly does A, and then gets consequence B. Rule followed; justice done; everyone (except Richard) is happy. But what we illustrate next is that not all rules are so simple, nor can they be so simply and rewardingly applied. Several types of difficulties can arise, making the application of the rules uncertain or, perhaps, undesirable. What are those difficulties that create hard cases and how do judges resolve them? It depends whether you ask a traditionalist or a Realist.

Defining Hard Cases

There are three kinds of hard cases: ones in which the language of an applicable rule is unclear; ones in which it is unclear which of several rules apply; and ones in which the language of a plainly applicable rule is clear but produces what the interpreter, applier, decision maker, or enforcer of the rule believes is the wrong outcome.

Unclear Rules

Legal rules often do not give a clear answer. A famous example in the legal literature involves a hypothetical rule prohibiting vehicles in a public park (Hart, 1958 ; Schauer 2008 a). When the question is whether that rule prohibits ordinary cars and trucks, the application of the rule is straightforward. Cars are widely understood to be vehicles, vehicles are prohibited according to the rule, and therefore cars, including this car, are prohibited. That people can and sometimes do reason in such a deductive or syllogistic way when they are given clear rules and presented with clear instances of application is well established (Evans, Barston, & Pollard, 1983 ; Rips 2001 ).

But what about bicycles, baby carriages, wheelchairs, and skateboards, none of which are either clearly vehicles or clearly not vehicles? Faced with such an instance, what would a judge do? One standard view is that the judge would then have discretion to decide the issue as she thought best. Perhaps the judge would try to determine the purpose behind the rule, or perhaps she would try to imagine what the original maker of the rule would have thought should be done in such a case. But whatever the exact nature of the inquiry, the basic idea is that the judge would struggle to determine what the unclear rule really means in this situation and would then decide the case accordingly.

The view that judges are searching for guidance from even unclear rules is part of the standard ideology of the lawyers and judges. But that view may be at odds with psychological reality. Freed from the strong constraints of a plainly applicable rule, the research on motivated reasoning suggests that the judge would be likely to decide how, on the basis of a wide range of political, ideological, personal, and contextual factors, she believes the case ought to come out (Braman, 2010 ). Having come to that conclusion, a conclusion not substantially dependent on the legal rule at all, the judge would then describe that result as being the one most consistent with the purpose behind the rule. And if the judge then looked for evidence of the purpose behind the rule, or evidence of what the rule maker intended in making the rule, much of what we know about confirmation bias (Nickerson, 1998 ) would suggest that the judge would not engage in the search for purpose or intent with an entirely open mind, but rather would be likely to find the evidence of purpose or intent that supported the outcome the judge had initially preferred.

The latter and more skeptical explanation is entirely consistent with the Legal Realist view about rules. In 1929 Joseph Hutcheson, a Texas-based federal judge, wrote an influential article (Hutcheson, 1929 ) challenging the traditional picture of legal reasoning. He claimed that it is a mistake to suppose that in the typical case that winds up in court the judge would first look to the text of the rule, the purpose behind the rule, the evidence of legislative intent, and the like in order to decide the case. Rather, Hutcheson argued, the judge would initially, and based largely on the particular facts of the case rather than the law, come up with an initial “hunch” about how the case ought to be decided. Then, and only then, would the judge seek to find a rule to support that result or seek to interpret a fuzzy rule in such a way as to justify that result. Subsequent Realists (e.g., Frank, 1930 ) reinforced this theme, albeit rarely with systematic empirical research.

Thus, the debate between traditional and Legal Realist view about rule following might also be cast in the language of the contemporary research on dual-process methods of thinking (Evans, 2003 , 2008 ; Sloman 1996 ; see Evans, Chapter 8 ; Stanovich, Chapter 22 ). 2 System 1 reasoning is quick and intuitive, whereas System 2 reasoning is more logical, systematic, and deliberative (Stanovich, 1999 ), and the traditional view of legal reasoning relies heavily on a System 2 model of decision making. The Realist perspective, as exemplified by Hutcheson's reference to a “hunch,” sees even judicial reasoning as having heavy doses of quick, intuitive, and perhaps heuristic System 1 decision making. (These are sometimes viewed as two separate reasoning systems and sometimes as the ends of a reasoning continuum.) The question remains as to which method of decision making more accurately reflects the reality of judging. Several legal scholars have suggested that judges, just like ordinary people, often come quickly to an intuitive decision but then sometimes override that decision with deliberation. They state, “The intuitive system appears to have a powerful effect on judges' decision making” (Guthrie, Rachlinski, & Wistrich, 2007 , p. 43) and then suggest various ways in which the legal system should increase the likelihood that judges will use System 2 reasoning in deciding cases. Note, however, that when the systems are in opposition it is not always the case that the intuitive system is wrong and the deliberative system is right; it can also turn out the other way (Evans, 2008 ).

When Rules Proliferate

The second type of hard cases consists of those to which multiple but inconsistent clear rules apply. Is a truck excluded from the park by the “no vehicles in the park” rule, or is it permitted by another rule authorizing trucks to make deliveries wherever necessary? Such instances of multiple and inconsistent rules make the Realist challenge to the conventional picture especially compelling in a legal system in which many rules might plausibly apply to one event. In countries with civil law systems, 3 legislatures attempt to enact explicit and clear legal rules covering all conceivable situations and disputes. Such rules are collected in a comprehensive code; therefore, the existence of multiple and inconsistent rules applying to the same event is, at least in theory, rare. Even the outcome-motivated judge might well find that the law plainly did not support the preferred outcome, and that would almost certainly be the end of the matter.

The situation is different in English-origin common-law countries, 4 where much of the law is made by judges in the process of deciding particular cases. Law making in common-law systems is less systematic than in civil law countries, and common-law judges and legislatures are less concerned than their civil law counterparts with ensuring that new rules fit neatly with all of the existing legal rules. As a result, it is especially in common-law countries that multiple and inconsistent rules may apply to the same event, allowing for more decisions that seem to be based on motivated reasoning. Moreover, even when a judge does not have a preferred outcome, when there are multiple potentially applicable rules, the judge's background and training, among other things, will influence which rules are retrieved and which are ignored (Spellman, 2010 ). In addition, if judges, like other people, seek coherence and consistency in their thinking, they may select legal rules and sources that are consistent with the others they have retrieved and ignore those that would make coherence more difficult (Holyoak & Simon, 1999 ; Simon, Pham, Le, & Holyoak, 2001 ).

When Rules Give the Wrong Answer

Although there can be problems with vague rules and multiple rules, as described earlier, typically the words of a plainly applicable rule, conventionally interpreted, do indicate an outcome, just as the “no vehicles in the park” rule indicates an outcome in a case involving a standard car or truck. But leading to an obvious outcome is not the end of the story. Because rules are generalizations drafted in advance of specific applications (Schauer, 1991 ), there is the possibility, as with any generalization, that the rule, if strictly or literally followed, will produce what appears to be a bad result in a specific situation. In Riggs v. Palmer ( 1889 ), for example, a case decided by the New York Court of Appeals, the pertinent statute provided clearly, and without relevant exception, that anyone named in a will could claim his inheritance upon the death of the testator (i.e., the person who wrote the will). The problem in Riggs , however, was that the testator died because his grandson, the beneficiary, had poisoned him, and did so precisely and intentionally in order to claim his inheritance as soon as possible. Thus, the question in Riggs was whether a beneficiary who murdered the testator could inherit from him. More generally, the question was whether the justice or equity or fairness of the situation should prevail over the literal wording of the rule.

Cases like Riggs are legion, and the issues they present raise important issues about the nature of law and legal decisions (Dworkin, 1986 ). But they also implicate equally important psychological questions. When a rule points in one direction and the all-things-considered right answer points in another, under what conditions, and how often, will people—be they legally trained or not—put aside their best moral or pragmatic judgment in favor of what the rule commands?

If the traditional story is sound, we would expect those with legal training to attach greater value to the very fact of the existence of a legal rule, and thus to prefer the legally generated but morally or pragmatically wrong result more often than those without such training. It turns out, however, that very little research has addressed precisely this question. On the one hand, research has found that law students (Furgeson, Babcock, & Shane, 2008 b) and federal law clerks (recent law school graduates) working for federal judges (Furgeson, Babcock, & Shane, 2008 a) are affected by their policy preferences in drawing conclusions about the law. On the other hand, there are data indicating that judges are better able to put aside their ideologies than law students in evaluating evidence (Redding & Reppucci, 1999 ). Most relevantly, legally trained experimental subjects tend to prefer formal rules of justice more often than those without legal training (Schweitzer et al., 2008 ). Still, the research can best be described as limited, presumably owing to the difficulties in securing judges and lawyers as experimental subjects. And, of course, any study finding differences between groups along the law-training continuum (laypeople, law students, law clerks, lawyers, judges) must consider not only legal training and experience but also selection and self-selection effects (e.g., who chooses to go into law; who is chosen to become a judge) when drawing causal conclusions.

Deciding Hard Cases

It is important to understand the types of difficulties generated by hard cases because litigation, and especially litigation at the appellate stage, is disproportionately about hard cases. Easy cases are plentiful, at least if we understand “cases” to refer to all disputes or even all instances of application of the law (Schauer, 1985 ). But if the law is clear and if the clear law produces a plausible or palatable outcome, few people would take the case to court in the first place. Only where two opposing parties each believe they have a reasonable chance of winning will the dispute actually arrive in court, and also, to an even greater extent, when disputants decide whether to appeal. As a result of this legal selection effect (Lederman, 1999 ; Priest & Klein, 1984 ), the disputes that produce litigation and judicial opinions will disproportionately represent hard cases, with the easy cases—the straightforward application of clear law—not arriving in court at all.

This selection effect is greatest with respect to decisions by the Supreme Court of the United States, which can choose the cases it will hear. It is asked to formally decide about 9,000 cases per year but considers only about 70 per year with full written and oral arguments. And with respect to these 70 cases, the existing research, mostly by empirical political scientists, supports the conclusion that the political attitudes of the Justices—how they feel about abortion and affirmative action, for example, as a policy matter—is a far better predictor of how they will vote than is the formal law (Segal & Spaeth, 2004 ). This research is not experimental; rather, it involves coding Justices on a variety of attributes and coding cases on a variety of attributes and then analyzing what predicts what. For example, Justices are coded on such things as age (at the time of the decision), gender, race, residence, political party at the time of nomination; cases are coded on such things as topic, types of litigants, and the applicability of various precedents and legal rules. The conclusion of much of this research is that we can better predict legal outcomes, at least in the Supreme Court and to some extent in other appellate courts, if we know a judge's prelegal policy preferences than if we understand the applicable rules and precedents. To the extent that this research is sound, therefore, it may support the view that the Supreme Court, ironically to some, is the last place we should look to find distinctively legal reasoning (but see Shapiro, 2009 , for a critique of these analyses).

Categorization

Questions about rule following obviously implicate important issues of categorization. Do we categorize a skateboard as a vehicle or as a toy? Do we categorize Elmer Palmer, the young man who murdered his grandfather in order to accelerate his inheritance, as a murderer, as a beneficiary, or possibly even as both?

Because legal outcomes are determined by something preexisting called “the law,” those outcomes require placing any new event within an existing category. When the category is specified by a written rule with a clear semantic meaning for the pertinent application, as with the category “vehicle” when applied to standard automobiles in the “no vehicles in the park” rule, the freedom of the decision maker is limited by the plausible extensions of the specified category. Often, however, there is no such clear written rule that is literally applicable to the case at hand, sometimes because the rule is vague (consider the Constitution's requirement that states grant “equal protection of the laws” and the constitutional prohibition on “cruel and unusual punishments”), sometimes because a case arises within the vague penumbra of a rule (as with the skateboard case under the “no vehicles in the park” rule), and often because in common-law systems the relevant law is not contained in a rule with a fixed verbal formulation but instead is in the body of previous judicial decisions. In such cases the task of categorization is more open ended, and decision makers must make less constrained judgments of similarity and difference in order to determine which existing legal category best fits with a new instance.

Legal Categories

The view that legal reasoning and legal expertise is a matter of using and understanding the categories of the law rather than the categories of the prelegal world is one whose iconic expression comes from an apocryphal anecdote created by Oliver Wendell Holmes:

There is a story of a Vermont justice of the peace before whom a suit was brought by one farmer against another for breaking a churn. The justice took time to consider, and then said that he had looked through the statutes and could find nothing about churns, and gave judgment for the defendant. (Holmes, 1897 , pp. 474–475)

The point of the anecdote derives from the fact that a justice of the peace would have been a lay decider of minor controversies, not a real judge with legal training and legal expertise. And thus Holmes can be understood as claiming that only an untrained bumpkin could have imagined that “churn” was the relevant legal category. That this is Holmes's point is made clear shortly thereafter, when he says that

[a]pplications of rudimentary rules of contract or tort are tucked away under the heads of Railroads or Telegraphs or … Shipping …, or are gathered under an arbitrary title which is thought likely to appeal to the practical mind, such as Mercantile Law. If a man goes into law it pays to be a master of it, and to be a master of it means to look straight through all the dramatic incidents and to discern the true basis for prophecy. (Holmes, 1897 , p. 475)

For Holmes, “railroad” and “telegraph” are lay categories, and “contract” and “tort” are legal categories, and one mark of legal expertise and legal reasoning is the ability to use legal rather than lay categories. This is still not a very strong claim about the distinctiveness of legal reasoning, for the difference that Holmes identifies is one of content and not of process. The lawyer does not think or reason differently from the layman, Holmes might be understood as saying, but thinks and reasons the same way, albeit with different categories and thus with different content (Spellman, 2010 ). If legal reasoning does not involve substantially different processes from ordinary reasoning, the strongest claims of the traditional view of legal reasoning are weakened. But if legal reasoning employs the distinctive categories and content of the law, and if these categories in fact determine many legal outcomes, the strongest claims of Legal Realism are weakened as well. By applying substantially (even if not completely) ordinary reasoning to substantially (even if not completely) law-created content and categories, legal reasoning may turn out to have its own special characteristics, but not in ways that either the traditionalists or the Realists maintained.

Relational Categories

We believe that the categories that the law uses tend to be relational categories—categories created on the basis of the relations that one item has with another, rather than on the basis of the attributes of single items taken in isolation (i.e., involving predicates that take at least two objects). That law is principally concerned with the way in which one person or thing is connected or related to another should not be surprising. After all, the law is about regulating interactions and exchanges among people—that is, relations. Take the category of “contract.” Suppose someone wants to know whether Judy and Jerry have entered into a contract. Nearly all personal details about Judy and Jerry are irrelevant, as are nearly all details about what they have contracted for. What is relevant is whether Jerry owned the property, whether Judy made what the law defines as an offer, and whether Jerry responded with what the law defines as acceptance. Similarly, suppose that Beth has done something to Brian. Whether that “something” is being hit, libeled, or kidnapped, it is again typically the relation of what one did to the other that matters. And so too with the questions involved in a finding of negligence: Did John harm James? Did John have a duty of care toward James? Again, relations are key. Note that sometimes it does matter whether the person is under 18 (and so can't sign a contract) or over 35 (and so is eligible to be President of the United States). And sometimes it matters whether a person is male or female, Black or White, famous or nonfamous. But most of the time it is only the relations between the parties that matter. Indeed, the traditional contrast between the “rule of law” and the “rule of men” [sic] stresses the impersonality of the law, and thus its emphasis on the relational “what” rather than the personal “who.”

Despite the large psychology literature on categorization, there has been relatively little work on relational categories (see Gentner & Kurtz, 2005 ). However, we do know that just like category members from standard categories prime other category members, category members from relational categories prime other category members (e.g., “bird-nest” primes “bear-cave” by activating the relation “lives-in;” Spellman, Holyoak, & Morrison, 2001 ). We also know that relations are generally more important than attributes for analogical reasoning. Thus, when someone is trained on which relations exist and matter, analogical reminding can be useful for retrieving analogies that can help make a legal argument. How analogy is used in legal reasoning is the topic of the next section.

Precedent and Analogy

In common-law systems much of the law is not to be found in the explicitly written rules enacted by legislatures or adopted by administrative agencies, but in the decisions of judges. And because when judges reach decisions and thus make law they are expected to take account of previous decisions—precedents—the interpretation of precedents is an important part of common-law decision making. In common-law systems, and increasingly in civil law systems, law develops incrementally as decisions in particular cases build on previous decisions. Understanding how to use previous decisions to make an argument or decision in the current dispute is consequently a substantial component of legal reasoning. Previous decisions play a large role in legal reasoning, but they do so in two very different ways (Schauer, 2008 c).

“Vertical” Precedent

First, and possibly of less significance in hard cases, is the obligation of a judge to follow the decision of a higher controlling court (hence “vertical”) even if she disagrees with that decision. This is the strong form of constraint by precedent, and it resembles the constraints of an explicitly written rule. When there is a previous decision on the same question (just as when there is an explicit rule plainly covering some application), the law tells the judge what her decision should be. Consider, for example, the obligations of judges with respect to the Supreme Court's decision in Miranda v. Arizona ( 1966 ), the case in which the Court required police officers to advise a suspect in custody of his rights to remain silent and have a lawyer prior to questioning. Miranda was controversial when it was decided and has remained controversial since. Many citizens, police officers, and even judges believe that Miranda was a mistaken decision. Nevertheless, a judge in a court below the Supreme Court is not permitted to substitute her judgment for that of the higher court. If the question arises in a lower court as to whether the statements of a suspect who was not advised of his rights can be used against him, the lower court judge who thinks that the answer to this question ought to be “yes” is obliged by the Supreme Court's decision in Miranda to answer “no.” Obviously there will be difficult cases in which it is not clear whether the defendant was in custody, or whether he was being interrogated, or whether he waived his Miranda rights. 5 In such hard cases a judge's views about Miranda's wisdom will likely influence her decisions about the application of the precedent. But in the easy cases—the cases that present the same question that the Supreme Court decided in Miranda —the lower court judge is obliged by the system to decide the question as it has already been decided even if, without the constraint of precedent, she would have reached a different decision.

“Horizontal” Precedent

The constraint of precedent, at least in theory, applies horizontally as well as vertically. That is, judges are obliged to follow previous decisions of their own court even if, again, they disagree with those decisions. In theory, a Supreme Court Justice who in 2010 disagrees with the Court's 1973 decision in Roe v. Wade ( 1973 ) is obliged by what is known as the doctrine of stare decisis —“stand by what is decided”—to follow that decision. At least with respect to the Supreme Court, however, the data indicate that the constraint of stare decisis is a weak one, having little force in explaining the votes of the Justices (Brenner & Spaeth, 1995 ; Schauer 2008 b; Segal & Spaeth, 1996 ). Unlike the obligation to follow the ruling of a higher court, which is largely respected when the decision of the higher court is clear, the obligation to follow an earlier decision of the same court appears to be perceived by judges as weak.

The obligation of a judge to follow a precedent that is exactly “on point” is an important aspect of legal reasoning and the self-understanding of the legal system, but its effect is rarely seen in appellate courts. When it is clear that some dispute is the same as that which has already been decided, the dispute will usually be resolved prior to reaching the appellate court. The cases that do end up being decided on appeal, again by virtue of the selection effect, are overwhelmingly ones in which past decisions do not obviously control the current dispute but exert their influence in a less direct way. Because the idea of following precedent so pervades the legal consciousness, drawing on and arguing from past decisions even when they are not directly controlling is a ubiquitous feature of legal reasoning, argument, and decision making.

The Role of Analogical Reasoning

Using previous decisions that are not exactly like the current question in order to guide, persuade, and justify is a process that is heavily dependent on, or perhaps identical to, analogical reasoning (Spellman, 2004 ). Understanding the legal system's use of analogical reasoning is accordingly vitally important for understanding the methods of legal reasoning and argument. Consider, for example, the decision of the New York Court of Appeals in Adams v. New Jersey Steamboat Company ( 1896 ), a case frequently discussed in the literature on analogical reasoning in law (e.g., Spellman, 2010 ; Weinreb 2005 ). The case concerned the degree of responsibility of the owner of a steamboat that contained sleeping quarters to an overnight passenger whose money had been stolen when, allegedly because of the company's negligence, a burglar broke into the passenger's stateroom. No existing legal rule controlled the case, and no previous decision had raised or decided the same question. And it turned out that two different bodies of law—two different lines of precedent—were each potentially applicable. If the law pertaining to the open sleeping compartments (“berths”) in railroad cars applied, the steamboat company would not be liable to the passenger. But if the law about innkeepers' responsibility to their guests was applicable, then the passenger could recover.

The Adams case presents a classic case of analogical reasoning in law. Although some prominent skeptics about analogical reasoning argue that judges, like the judges in Adams , simply make a policy-based choice of a general rule (Greenawalt, 1992 , p. 200) and mask it in the language of similarity (Alexander, 1996 , ; Posner 2006 ), such an approach is inconsistent with what we know about analogical reasoning. Applying the research on analogy to the Adams case, we can understand how each side was trying to get the judges to apply a different well-understood source—either the law of innkeepers or the law of railroads—to a less well-understood target—a stateroom on a steamboat.

So is a steamboat more similar to an inn or to a train? We suspect that most people would answer “train,” but that is not the relevant question. How about: Is the stateroom on a steamboat more similar to a room at an inn or to a sleeping berth on a railroad? That is a tougher question, and one might be tempted to ask (as one should when dealing with categorization generally; see Chapter 10 ), “Similar with respect to what?” Here the answer might be, “With respect to how much the plaintiff had the right to expect security of his possessions while he slept.” Given the situations—that one can lock one's room at the inn and one's stateroom on the steamboat but not one's berth on the train; given that the room at the inn and the stateroom are more private than the sleeping berth on the train; and, perhaps, given that one paid extra for a room and a stateroom (the court's decision did not include many details)—it is easy to argue that the steamboat and inn are similar in that the owner gives the traveler an implied guarantee that he and his possessions will be safe while sleeping.

In fact, the court applied the law of innkeepers rather than the law of railroads, and such a decision might be explained in terms of a distinction between surface and relational similarities (Holyoak & Koh, 1987 ). The successful analogy—between the steamboat and the inn—was not the one in which the objects were similar, but rather the one in which the legal relations between the relevant parties were similar. Developing expertise in law, which we assume the judges possessed, means seeing through the surface similarities and understanding which relational similarities matter. 6 Note that in saying that the relevant legal category in Adams was a category that connects inns and steamboat accommodations (the category of those who offer sleeping accommodations, perhaps) rather than one that connects steamboats and railroads (means of transportation), the court based its categorization decision on a legal rather than a lay category.

Is this kind of reasoning substantially different between those who are legally trained and those who are not? Consider an experiment that compared law students to undergraduates (Braman & Nelson, 2007 , Exp. 2). The subjects (96 undergraduates and 77 law students) read an article summarizing the facts of a target case, but they did not know the result, and they also read one version of a potentially relevant previously decided case—which varied between subjects on two factors of possible legal relevance. The undergraduates rated the precedent as more similar to the target case than did the law students. The law students perceived similarity and difference between the cases in light of legal and not lay categories. Although the determination of similarity and difference is likely to be domain dependent (Medin, Lynch, & Solomon, 2000 ), it does not follow from the fact that particular similarities that are important in one domain are unimportant in another that the very process of determining similarity varies according to domain. Thus, although there may be differences between legal reasoners and ordinary reasoners, the differences, insofar as they are a function of knowledge attained in legal training and practice, may be better characterized as content based rather than process based.

Possession of legal knowledge may thus explain the difference between legally trained and non–legally trained reasoners. But given that most judges are legally trained, and given that both sides present the potentially relevant cases supporting their sides to the judges, why are there disputes over the appropriate analogy to use? The Realists would say that the judges have a desired outcome and then pick the appropriate analogies to justify their decisions. But perhaps people (and judges) choose relevant analogies (or precedents) as better or worse, applicable or inapplicable, not because of any particular desired outcome but rather because of their own preexisting knowledge and the way they frame their questions (Spellman, 2010 ; Spellman & Holyoak, 1992 , 1996 ).

Fact Finding

As described earlier, an important type of decision making in legal proceedings is “fact finding” and most of the factual determinations in legal proceedings are made by judges. Many of these determinations are made in the course of preliminary proceedings and many are made in trials in which there is no jury. Yet although fact finding is done far more often by judges than by juries, most of the research about fact finding has been done on juries. One reason may be that juries feature prominently in television and movie trials, and as a result researchers may believe they are more prevalent in nontheatrical legal proceedings than they really are (Spellman, 2006 ). Another reason might be that lay jurors are far more likely to resemble the typical experimental subjects used by psychology researchers. Using findings based on experiments with university undergraduates to draw conclusions about the decision-making practices of judges may involve significant problems of external validity, but the greater similarity between lay undergraduates and lay jurors significantly lessens these problems (Bornstein, 1999 ).

Fact Finding by Juries

Perhaps the most important dimension of jury fact finding is the way in which the information that juries receive is carefully controlled by the law of evidence. Evidence law is based on the assumption that jurors will overvalue or otherwise misuse various items of admittedly relevant information, and the rules of evidence thus exclude some relevant evidence because of a distrust of the reasoning capacities of ordinary people. There is a general rule of evidence (FRE 403) that a judge may exclude relevant evidence “if its probative value is substantially outweighed by a danger of … unfair prejudice, confusing the issues, misleading the jury … ” More specifically, for example, the information that the defendant in a robbery case has committed robbery in the past is typically excluded from jury consideration, even though a rational decision maker would recognize that such evidence, even if hardly conclusive, is far from irrelevant. 7 Similarly, the exclusion of hearsay evidence—evidence of what someone else (who is not now testifying) said was true, rather than what a witness perceived as true—is based on the notion that juries will give too much weight to what was said by a person who is not appearing in court. Yet this fear entails excluding from consideration evidence that ordinary decision makers would consider relevant to the decision to be made. In ordinary life, people rely frequently on hearsay to inform themselves about what happened and often make judgments about ambiguous or unknown current behavior based on past behavior. The fact that the law of evidence excludes so much of what figures prominently in everyday reasoning is accordingly perhaps the most important feature of evidence law.

When jurors are the fact finders, they may receive two types of instructions from the trial judge. The first are immediate instructions during the trial: to forget information they have heard or to use some information for one purpose but not for an (obvious) other one. For example, a witness might blurt out that he knew the defendant because they had been in prison for robbery at the same time. If the defense lawyer objects and makes a motion to strike, and the judge sustains, she will immediately instruct the jury to disregard that evidence. There is much data supporting the conclusion that jurors typically do not disregard such evidence (Steblay et al., 2006 ). The jury is still out, however, on the question of whether it is that jurors cannot disregard or choose not to disregard. There is strong evidence that under some conditions the failure is intentional (e.g., Sommers & Kassin, 2001 ), but it is likely that under other conditions jurors are simply unable to disregard what they already know.

The second type of instructions comes just before jurors deliberate: They are instructed about both the content of the law specific to the case at hand and about general procedures they should use to decide the case. The latter include the mandate that they decide the case in accordance with the instructed law, and not on the basis of what they think is the right result. Thus, an important question, one about which there has been considerable research, is the extent to which jurors actually understand judge's instructions (see Diamond & Rose, 2005 , and Ogloff & Rose, 2005 , for reviews).

Although considerable recent efforts have aimed at making instructions more comprehensible, the research suggests that jurors typically do not understand very much of the judge's instructions, including specific instructions about elements of the crime and general instructions about the burden of proof (Ogloff & Rose, 2005 ). Some of this gap between instructions given and instructions comprehended may be a function of the fact that judges are more concerned with legal accuracy in language of the instruction (so the case will not be overturned on appeal) than they are with maximum comprehension by the jury. But much of the gap may follow from the difficulty that experts in general have of understanding the perspective of nonexperts in their own field.

Although jurors often do not understand the judge's instructions, that does not imply that they will deliver an erroneous verdict. It turns out that juries tend to deliver the correct verdict, at least where the measure of correctness is what the judge would have decided were there no jury. Various studies over the years, using different methodologies, have shown that a judge's and jury's decisions about the same cases are typically in accord (see Diamond & Rose, 2005 ). However, each one of these studies has at least one serious methodological flaw. Still, overall, it seems that even though jurors may not appreciate the nuances of the applicable law, they are reliable in getting a general sense of who ought to prevail. (As far as we can tell, none of the research has focused explicitly on the decisions of jurors who do not understand the instructions in cases in which the justice of the situation and the law point in opposite directions, and thus it would be a mistake to assume that juror incomprehension of judicial instructions is largely inconsequential.)

That jurors who at best imperfectly understand the judge's instructions nevertheless reliably reach the correct verdict is related to what we know about how juries determine what happened. Much of the structure of a trial and much of the law of evidence is premised on an incremental and Bayesian model of fact finding, in which jurors with prior beliefs about some state of affairs adjust the probability of those beliefs upward or downward as additional pieces of evidence are presented (see Griffiths, Tenenbaum, & Kemp, Chapter 3 , for a discussion of Bayesian inference and Hahn & Oaksford, Chapter 15 , for applications to the jury decision making). This is a plausible model of how information is received and processed at trial, yet it is not a model that appears to track the reality of juror decision making.

The prevailing psychological model of juror decision making is the Story Model (Pennington & Hastie, 1991 ), which suggests that juror decision making is more holistic than incremental. The Story Model proposes that jurors evaluate the evidence based on which story (i.e., prosecution, defense, or some other) best explains all or almost all of the evidence they have heard, as opposed to making a preliminary determination on the basis of some evidence and then continually revising that determination as additional pieces of evidence are presented. In seeking the story that best explains the evidence they have heard, therefore, jurors' reasoning is largely devoted to determining which of the two (or more) competing stories at a trial is more coherent and complete. Indeed, another holistic model of reasoning, Explanatory Coherence (Thagard, 1989 ), has been applied to reasoning about legal cases (Simon et al, 2001 ; Thagard 2003 ), scientific reasoning, and other types of reasoning (Thagard, 2006 ; Chapter 14 ). Thus, that these models explain ordinary reasoning as well as jury decision making provides still further support for the view that legal decision making, whether by judge or by jury, is less different from ordinary decision making than lawyers and judges have long believed.

Note, however, that the aforementioned describes the prevailing model of juror , not jury , decision making. Often left out of studies of legal decision making is the fact that jurors, always, and judges, often (on appeal but not at trial), make their final decisions as a group. Research on group decision making is thus very relevant to legal decision making (see Salerno & Diamond, 2010 ).

Fact Finding by Judges

The law of evidence provides an interesting window into the legal system's traditional belief in the superior and distinctive reasoning powers of those with legal training. In countries that do not use juries there is rarely a discrete body of evidence law, and judges are comparatively free to take all relevant information into account. And in the United States, when judges sit without juries, they often tell the lawyers that many of the rules of evidence will be disregarded or interpreted loosely to allow more evidence to be considered than would be allowed were there a jury (Schauer, 2006 ). Underlying this practice is the belief that only those with legal training can be trusted to evaluate evidence properly (Mitchell, 2003 ; Robbennolt 2005 ), but it turns out that underlying this belief is more unsupported faith than actual data (Spellman, 2006 ).

Should we expect judges to be better at fact finding than juries? There are many differences between jurors and judges (as we discuss in the next section), but there is certainly nothing about law school training that seems likely to affect this type of reasoning: It is not at all like what Professor Kingsfield had in mind with his version of training in the Socratic method whereby he would press students with question after question about the meaning and implications of the decision in a case. Perhaps, however, either judges' repeated experience listening to cases (versus jurors doing it rarely) or their desire to do the right thing in following the law (where jurors might not take that mandate as seriously) would make judges better. In terms of repeated experience, because there never is real feedback regarding what the true facts of a case were, it is doubtful that practice makes one better. And in terms of wanting to follow the law, there is research supporting the view that judges are barely better than laypeople at ignoring information they are supposed to disregard (Wistrich, Guthrie, & Rachlinski, 2005 ). Thus, the data that exist about judicial fact finding support the conclusion that, when acting as fact finders and not as legal interpreters, judges are less different from lay jurors than many people—and many judges—commonly believe (Robinson & Spellman, 2005 ).

Judges' Expertise and the Authority of Law

There is, as we have emphasized, a running debate between the traditional and Legal Realist accounts of legal reasoning, and one way of framing the question of the distinctiveness of legal reasoning is in terms of the traditional claim that lawyers and judges are experts. That was clearly Kingsfield's claim, for example, but it leaves open the question of what kind of experts lawyers and judges might be. More particularly, is it possible that there are at least some process-based differences between legal and lay reasoning? Consider again the task of analogical reasoning in law. Perhaps lawyers and judges simply become better analogical reasoners by virtue of their legal training and experience. Perhaps judges, and to some extent lawyers, are experts at analogical reasoning in ways that laypeople are not.

Judges (and typically lawyers) differ from nonjudges and nonlawyers on a variety of dimensions (see Stanovich, Chapter 22 ). On average, they have higher IQs than, say, jurors. They have more formal schooling. They may differ on some personality variables. They have chosen to go into, and stay in, the legal field. They are repeat players—doing the same thing time after time. And, as a result, they are likely motivated to “get it right,” or at least not to “get it badly wrong,” because their decisions become public and their reputations and even their jobs could be at stake. They also have their years of law school training. There is research showing that judges fall prey to the same standard reasoning biases as other mortals (e.g., anchoring, hindsight bias, etc., even when the problems are framed in a judicial context; Guthrie, Rachlinski, & Wistrich, 2001 ). But the research has focused on tasks other than those that are characteristically legal tasks. Maybe what Kingsfield was driving at was the notion that law students can be trained to be better at the central reasoning tasks that engage lawyers and judges.

Expertise and Analogy

That lawyers and judges are better at analogical reasoning than laypeople seems like a plausible claim, but it is not borne out by the research. Just as there are no data to support the belief that judges are expert fact finders (Robinson & Spellman, 2005 ) or experts at weighing evidence (Spellman, 2006 ), there are no data to support that judges' ability to use analogies transcends the domains in which they normally operate. And if they are not experts at using analogies outside of the law, then the expertise they have is an expertise that comes from their legal knowledge and not from any increased ability in analogical reasoning itself. Thus, when law students in their first and third years of law school were compared to medical students and graduate students in chemistry and psychology (Lehman, Lempert, & Nisbett, 1988 ), the law students had initially higher scores on a verbal reasoning test (which included verbal analogies) than the others, presumably partly a function of self-selection and partly of the selection criteria of law schools. After 3 years of schooling, however, the law students showed only a statistically nonsignificant increase in verbal reasoning while the others improved to a greater extent. If these findings are generalizable, they might be thought to provide further support for the view that legal reasoning expertise, if it exists, is a content-based and not process-based expertise.

Expertise and Authority

But as described earlier, particularly in the sections on rules that give the wrong answer and on precedent, there is more to legal reasoning than using analogies. Understanding the traditional view of legal reasoning, and even the nature of law itself, requires appreciating the role that authority plays in legal decision making. Just as citizens are expected to obey the law even when they think it mistaken, so too are lawyers and judges expected to follow the legal rules and legal precedents even when they disagree with them. In this sense the law is genuinely authoritative; its force derives from its source or status rather than from its content (Hart, 1982 ). Just as the exasperated parent who, having failed to reason successfully with her child, asserts, “Because I said so!” law's force derives from the fact that the law says it rather than the intrinsic value of the content of what the law is saying.

The nature and power of authority has been the subject of psychological research, primarily by social psychologists, but the effect of an authority, even an impersonal authority like the law, also has cognitive dimensions. For example, authoritative sources may provide arguments and reasons that the decision maker would not otherwise have thought valid and relevant. On the other hand, sometimes an authoritative legal source will tell a decision maker to ignore what she thinks is a relevant fact (Raz, 1979 ), and sometimes it will tell a decision maker to consider what she thinks is an irrelevant fact. As an example of the former: The relevant Supreme Court free speech cases make irrelevant the fact that a speaker is a member of the American Nazi Party or the Ku Klux Klan and wishes to publicly espouse Nazi or racist sentiments. The law not only demands that these factors be disregarded, but it also demands that they be disregarded even by a decision maker who disagrees with this aspect of the law. As an example of the latter: In determining whether a will is valid, a judge must determine whether the will contains the requisite signatures applied according to various other formalities, absent which the will is invalid even if there is no doubt that it represents the wishes of the deceased. And the judge is obliged to take this into account even if the judge believes it would produce an unjust outcome in this case, and even if the judge believes that the law requiring the formalities is obsolete or otherwise mistaken.

Thus, an important question is the extent to which legal decision makers can suppress their best judgment in favor of an authority with which they disagree. The traditional view of legal reasoning is that decision makers can be trained to do just that, and in fact much of the training in law school is devoted to inculcating just this kind of distinction between obedience to legal authority and taking into account that which otherwise seems morally and decisionally relevant (Schauer, 2009 ). Indeed, because the inherent authority of law often requires a decision maker to ignore what she thinks relevant, and consider what she believes irrelevant, it may be useful to understand part of legal reasoning as not being reasoning at all. It is, to be sure, decision making, but part of legal decision making is the way in which authoritative law makes legal decision makers avoid reasoning and even avoid thinking. For the legal decision maker, just like the legal subject, the authority of law is the mandate to leave the thinking and reasoning to someone else.

Are people willing and able to do that? Research by Schweitzer and colleagues (Schweitzer, Sylvester, & Saks, 2007 ; Schweitzer et al., 2008 ) indicates that law students are more willing than laypeople to follow rules even when the result produced by following a rule conflicts with the just result, suggesting that the difference between legal reasoning and ordinary reasoning may involve some process- and not content-based skills. Yet Schweitzer and colleagues also found no differences between first-year and third-year law students, possibly indicating that the process-based dimensions of legal reasoning are more a matter of self-selection and law school admissions selection than of anything that is actually taught and learned during the study or practice of law. Perhaps, therefore, lawyers and judges are different from laypeople, but those differences may be more a function of knowledge, experience, and self-selection than of actual training in distinctively legal reasoning.

Legal Procedures

In this chapter, and throughout much of the research on legal reasoning, great emphasis has been placed on the legal decision maker. Who makes legal decisions, how might legal decision makers resemble or differ from other decision makers, and what differences, if any, might these similarities and differences make (see LeBoeuf & Shafir, Chapter 16 )? But the law is not only a domain of decision makers with unique abilities, training, and experience, it is also a domain in which the procedures and structures for making decisions differ from those commonly found elsewhere. Controlling for differences in decision maker characteristics, therefore, might decision-making procedures by themselves produce important differences in the thinking and reasoning of those who are making the decisions?

The structural and procedural differences of the legal decision are manifested in numerous ways. Consider, for example, the all-or-nothing nature of much of legal decision making. Legal decisions are typically binary, with the parties winning or losing, and with legal rules or precedents being applicable or not. Probabilistic determinations are the exception and not the norm in law. A plaintiff who suffers $100,000 damages and proves her civil case to a 60% certainty does not recover $60,000, as expected value decision theory would suggest, but rather the entire $100,000; and if she established the same case with 48% certainty, she would get nothing at all. A defendant who is charged with first-degree murder (which includes a finding of premeditation) cannot be found guilty of manslaughter (which does not) if he was not charged with manslaughter but the jury thinks he indeed killed the victim without the requisite intent. 8

Similarly, it is rare for a judge to say that a rule or precedent is almost applicable or partly applicable, and even rarer for an uncertain judge, at least explicitly, to split the difference in a legal argument. There has been little research how the all-or-nothing character of legal decision making might create or explain some of the differences between legal and nonlegal decision making.

The binary character of legal decision making is merely one example of the procedural peculiarity of legal decision making, but there are many others. Judges are typically expected to provide written reasons for their decisions, but how does the requirement of formal reason-giving affect the nature of the decision? 9 Conversely, juries are typically prohibited from explaining the reasons behind their decisions, and how might this prohibition influence their decisions? The appellate process commonly produces redundancy in decision making, but how is the decision of an appellate court influenced by the knowledge that the judge below has already reached a decision about the same questions? Finally, and perhaps most obviously, legal procedures are especially adversarial, and it would be valuable to know the extent to which decision makers—whether judges or jurors—think differently in the context of adversarial presentations than they would were the same information and arguments presented to them in a less combative or more open-ended manner. In these and other respects, it may well be that considering legal reasoning solely as a matter of content- or process-based differences (or not) is too simple, and that a psychological account of legal reasoning must be conscious of how these distinctively legal procedures and structures affect the decision makers.

Conclusion and Future Directions

We have noted at various places that most of the research on judicial decision making has been based on assumptions rather than data about the similarity between judges and lay decision makers. There are obvious problems with trying to use judges and even experienced lawyers as experimental subjects. Still, insofar as the central questions of legal reasoning from a psychological perspective are the questions of whether people can be selected (or self-select) for a certain kind of legal reasoning ability, or whether they can be trained for a certain kind of legal reasoning ability, further research on the differences between lawyers, law students, and judges, on the one hand, and laypeople, on the other, remains an essential research task.

A related agenda for research is one that would distinguish the task of fact finding from the task of interpreting, applying, and, at times, making law. The traditional claims for legal reasoning are largely about these latter functions, and thus the evaluation of the traditional claims will need to focus more on the application of rules and precedents than has thus far been the case. Only when such research has been conducted in a systematic way will we will be able to approach an answer to the question of whether Kingsfield was right, or whether he was just the spokesman, as the more extreme of the Legal Realists claimed, for a long-standing but unsupported self-serving ideology of the legal and judicial professions.

In three recent Supreme Court nomination hearings, for example, now-Chief Justice Roberts insisted that Supreme Court Justices were like baseball umpires, simply calling balls and strikes with no interest in the outcome; now-Justice Sotomayor claimed that her past decisions as a judge were based solely on the law and not on her personal views, and that her future decisions would be the same; and now-Justice Kagan, even while acknowledging that Justices must exercise substantial discretion, said that good Supreme Court decisions were still based on “the law all the way down.”

The difference between this formulation of the Realist view and the earlier one is, did the judge first consciously decide what she wanted the outcome to be (e.g., Bush has to win in Bush v. Gore, 2000) and then try to justify it (strong Realism) or did the decision come unbidden, as a “hunch”? This latter version sounds a bit like the Moral Intuitionist version of moral reasoning (Haidt, 2001 ; see Chapter 19 )—in which people make moral judgments from quick intuitions then strive to justify them—but they are different. The Moral Intuitionist view is vague about what intuitions are and how they arise; we believe that intuitions arise from knowledge, and, thus, an experienced judge's intuition about a case will reflect her knowledge of other similar cases. She may arrive at the opinion consistent with her values not because she consciously decided which way to rule, but because her previous knowledge and beliefs gave her a justifiable intuition (Spellman 2010; see Kahneman & Klein, 2009 ).

Civil law countries are those whose legal systems emanate, for example, from the Code of Justinian in Roman times or the Napoleonic Code 2,000 years later.

Common-law countries include the United States, the United Kingdom, and Australia. The type of legal system tends to vary with whether the country has juries, with common-law countries using them more and civil-law countries using them less, but the covariation is not a necessary one.

The key is to argue that these differences make it not the “same” question.

Or, perhaps, because the court believed as a policy matter that they ought to be treated as similar and decided accordingly. Similarity judgments may be guided by pragmatic relevance (Spellman & Holyoak, 1996 ).

The rule keeping out such evidence seems concerned with people making the Fundamental Attribution Error (Ross, 1977 ).

This all-or-none nature of a probabilistic verdict provides the backdrop for pretrial settlements and plea bargains. It also affects how much money a plaintiff might ask for in a civil case and which criminal charges a prosecuting attorney will bring.

It is in vogue to believe that not thinking about a complex decision is best (Dijksterhuis, Bos, Nordgren & van Baaren, 2006 ), but there is concern about those findings (e.g., Payne, Samper, Bettman & Luce, 2008 ; see also McMackin & Slovic, 2000 ).

Adams v. New Jersey Steamboat Company, 45 N.E. 369 (N.Y. 1896 ).

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We’ll start with understanding what is meant by “critical thinking.”  While in-house counsel needs to be strategic about legal matters, the business is not really asking you for that. They want something broader. Critical thinking is the process of systematically analyzing, synthesizing, and evaluating information, involving both (a) the ability to think in a reasoned and logical manner and (b) a willingness to question and reconsider your assumptions, beliefs, and conclusions. In the context of working in-house, it means that you are thinking strategically about the company and its business goals and objectives while you work, looking to do more than just spot “legal” issues. Critical thinking requires that you become a businessperson with a law degree – not just a lawyer working for a company.   

Here are the steps to help develop your critical thinking skills:  

1. Learn the business

It is impossible to engage in critical thinking without a solid understanding of the business and a) how your company makes money; b) its products and services; c) its important customers and vendors; d) its competitors; and e) its business plans and strategy. Here are some ways you can start to master these topics (depending on what you have access to):  

• Read company strategy documents and business plans.  
• Read all company press releases and public filings (if any). Read the public filings of your company’s main competitors.  
• Read board slides.  
• Ask for demos of company products and services.  
• Meet with the heads of different business units and staff groups and ask them about the marketplace, their competitors, strategy, etc.  
• Identify and read industry publications, newsletters, blogs, etc.  
• Ask someone in finance to walk you through the most recent financial statements and share their thoughts about how the company has positioned itself in the marketplace and what they think it should be doing to become more profitable or a more viable competitor.  
• Be well-read generally, i.e., read for fun and knowledge. Read several reputable newspapers every day (not word-for-word, but at least to scan for stories that might be of interest to your business).

2. Sharpen your financial acumen

Critical thinking in the business context requires a basic understanding of finance . You don’t need an MBA, but you need to be comfortable around numbers and you must understand your company’s numbers, in particular the company’s:  

• Profit & loss statement.  
• Cash flow statement.  
• Balance sheet.  
• Any measurements the company uses to gauge success, for example, “EBITDA.”  

3. Make time to think

To be a critical thinker, you must pull away from just ticking things off your to-do list and managing the operations of your team. You must carve out time each day (or at least once per week) to think – 15 to 30 minutes blocked out on your calendar to just churn on a new problem, something you have read, or whatever the case may be. As you ponder , you want to think about the business generally and about generating or protecting shareholder value.

When a new issue or problem arises, making time to really think about it and its impact on the company (good or bad) is a critical step in the process.

What is involved? Who is involved? What are all the options? What are the risks and benefits of any particular path? These types of questions help you develop deeper insights into the issue at hand.  

4. Seek out strategic roles

Try to take yourself out of situations where you are only working on legal problems, i.e., seek out roles in strategic projects . Every company has some cross-functional strategic projects going on at any one time, i.e., important projects that involve people from different parts of the business. Get yourself assigned to one of these at the next opportunity, especially if you can find one focusing on long-term planning or company strategy. You will absorb a lot just being part of such a team. Remember to work hard to go beyond your role as just a pair of eyes from the legal department looking to weigh in on legal issues. That should be part of what you are doing, but you are also trying to get looped into the business discussion/strategy as well. Be prepared, diligent, and deliver on what you promise. This will likely mean some extra work on your part, along with a willingness to raise your hand and volunteer.   

5. Stop communicating like a lawyer

Start talking and writing like a business person . This means ditching the complicated and arcane language many lawyers love to use. If you want your colleagues to think of you as more than a lawyer, then figure out how best to communicate with them. In a nutshell, you must learn to keep things simple, get to the point quickly, use charts and graphs, and back up your thinking with numbers and analysis. Most importantly, be practical. Live in the world of what is doable and what is most likely to happen and not the worst-case scenario. The sky is rarely falling and resources are not unlimited. A critical thinker understands the reality of the world around them and balances risks appropriately.   

6. Ask the right questions

To be a critical thinker, it helps to have a list of questions that you can apply to just about any problem to help you think about and consider it as more than a legal issue. Here are some questions to get you started (and you can create your own list):  

• Who does this impact?  
• What is the business trying to accomplish here? How can I help?  
• Does this maximize value creation or minimize value destruction?  
• How does this fit into the company’s strategy?  
• If we do this, what happens in the short term and long term?  
• What are the benefits and risks of doing this? How much will it cost?  
• Is this something that will make customers or vendors upset?  
• Is this something that if it becomes public or goes “badly” could damage the reputation/value of the company?   
• Who in the company needs to know about this?  

 ____________________________________________________________________

Not everything above is easy to accomplish. But you must start somewhere. If you have a framework to work against, then over time you will be able to pull in more of the concepts and steps set out above. Start by looking at how to solve legal problems within the context of the company’s overall business strategy rather than just looking at them as purely legal issues in a silo. When you begin to think like this, you are on your way to becoming a critical thinker.

If you have access to Practical Law, you have a ready set of tools to get you started down the right path.  

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Why Law Schools Need to Teach Critical Thinking

by Scott Fruehwald

Law schools have never systematically taught critical thinking.  I do not mean that law schools do not help develop critical thinking.  However, this is not done on a systematic basis.  There is no method or approach for teaching critical thinking in law schools.

For example, taking a class in negotiation will help students develop critical thinking, but not systematically.  This is like learning grammar just by speaking a language.  While this gets the student some of the way, to be systematically trained in a language, a student must explicitly study grammar.  Similarly, the Socratic method does help develop some critical thinking processes, but it mainly teaches students how to extract and understand doctrine.

I have just completed a book that shows law professors how to understand and teach critical thinking: How to Teach Lawyers, Judges, and Law Students Critical Thinking: Millions Saw the Apple Fall, but Newton asked Why .

Critical thinking is “[t]he intellectually disciplined process of actively and skillfully conceptualizing, applying, analyzing, synthesizing, and/or evaluating information gathered from, or generated by, observation, experience, reflection, reasoning, or communication, as a guide to belief and action.”  ( here )  “It is . . . automatically questioning if the information presented is factual, reliable, evidence‑based, and unbiased.” ( here )  Critical thinking is a set of processes, including metacognition, conceptualizing, synthesizing (constructing), asking questions, organizing, developing and evaluating alternatives, considering unintended results, planning, self-monitoring, reflection, spotting assumptions, evaluating inferences, exercising epistemic vigilance, supporting arguments with evidence, evaluation, skepticism, and self-direction.

Here are several things that critical thinking can do:

1.  Critical thinking helps overcome superficial thinking.  It helps you see when you are relying on unsupported assumptions or opinions.

2.  Critical thinking helps overcome thinking based solely on intuition.

3.  Critical thinking produces rigorous and disciplined thinking.

4.  Critical thinking helps individuals create questions.

5.  Critical thinking helps individuals know when they need more information.

6.  Critical thinking helps avoid unintended consequences.

7.  Critical thinking supports problem-solving.  It helps make sure you don’t skip a step in the problem-solving process.

8.  Critical thinking helps overcome biased thinking.

9.  Critical thinking helps avoid mistakes by providing a method to evaluate (double-check) one’s work.

10.  Critical thinking helps an individual critique the work of others.

11.  Critical thinking promotes deep thinking.

12.  Critical thinking helps an individual see all sides of an argument.

13.  Critical thinking helps individuals solve difficult problems.

14.  Critical thinking helps individuals support their arguments.

15.  Critical thinking helps individuals recognize how a problem is framed and overcome the framing effect.

16.  Critical thinking helps thinkers recognize when selfish motives lie behind an argument.  It helps thinkers recognize manipulation.

17.  Critical thinking teaches students how to construct the law.

My book introduces critical thinking, shows how to teach it to lawyers, judges, and law students, and demonstrates how to use critical thinking to improve the Socratic method.  It also shows law professors how to improve their teaching through critical thinking.  Finally, it includes chapters on teaching legal writing and judges.  Since critical thinking development requires practice, it includes many examples and exercises.

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3 Responses

I look forward to seeing this book. Given the trends in practice, teaching higher-order skills has become even more important. Critical thinking is one. Systematic decision-making is another. This is taught is many well-designed negotiation classes, but negotiation is a course and skill that is not offered enough in most law schools. (please see my article on Negotiation as a Foundational Skill: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3091415 )

Schools increasingly obsess over how much of AI and coding should be taught. But most schools barely (if at all) teach their students how to intelligently understand statistical information, despite the fact that this is knowledge vital to many areas of legal practice, as well as in public policy evaluation.

Law schools do lots of things well, but we can do better by rethinking what knowledge and skills our students will need in the future.

I received Mr. Fruhwald’s book yesterday. I read the chapter on understanding critical thinking today, and it is an eye opener. He is right. Law schools do not teach critical thinking, at least not critical thinking as it is defined by critical thinking experts. Teaching critical thinking in law schools would significantly improve our law students.

Great post! Teaching critical thinking to law students would definetely be a good idea, but I think that it is a skill that people from all professions and from all walks of life should learn. Not a lot of people have this capacity to think critically. We are all born with the capacity to think, but not everyone is capable of critical thinking. Moreover, we have a tendency to operate within our own echo chamber, where the only information that goes through our brain is information that validates our prior knowledge, vindicates our prior decision, sustains our existing beliefs. We should get into the habit from time to time of walking down the road less traveled, the one taken by critical thinkers. I wrote a blog article on this subject – https://authorjoannereed.net/what-is-critical-thinking/ . Feel free to check it out!

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Critical Thinking Crisis Plagues Legal Profession’s Entry Level

Law firm partners frequently tell me they are worried that associates fresh out of law school aren’t approaching legal problems with the type of analytical thinking successful lawyering requires. Is this lack of critical thinking skills a generational problem specific to Gen Z lawyers, or does the issue go back further?

Some may argue that the influence of social media created a generation of lawyers who lack critical thinking skills, while others may blame the rise of standardized testing, or even the disruption of the pandemic. I would argue it doesn’t matter.

The need for robust critical thinking skills among newer law firm attorneys today has become absolutely indispensable.

Thanks to the digital age and the proliferation of artificial intelligence, lawyers have an unprecedented wealth of information at their fingertips. Are these new lawyers being adequately trained to analyze and assess the information before them? The answer is most likely a resounding no. This instant access to information makes critical skills training for our newest attorneys even more urgent.

Critical Thinking Deficits

I have seen firsthand numerous examples of this skills gap.

Associates drafting a contract using a sample precedent agreement routinely leave provisions from the precedent that don’t belong in the new contract. New litigators draft motions that include arguments relevant to a sample motion form that are inapplicable to the current motion—then fail to include other key arguments because they’re too wedded to the sample.

Associates will often cite cases to support an argument but fail to explain exactly why the case is applicable. They expect the reader—usually a court—to make the connection themselves, in essence telling the court their client should win “because this case.” Or, associates start to mark up a document without first thinking through how much time and resources the client wants to spend, whether they even have the leverage to negotiate the positions, or the most practical approach for the size and scope of the matter.

What is the common denominator here? It’s a failure to ask “why.” Why was the provision in the precedent agreement and should it be in the agreement being drafted? Why was a certain argument made in the sample motion and does it even apply to the current case? Why did the court rule a certain way in the cited case, what facts did it rely on to reach that ruling, and how does any of this relate to the case at hand? And, finally, why am I spending time marking up an agreement without first talking to the partner about the client’s goals and resources?

In my experience working with law students and junior attorneys—as an adjunct professor and supervising attorney—this failure to ask “why” is one of the most significant stumbling blocks for an associate seeking to develop as an attorney.

Learning to Ask Why

In today’s legal landscape, the lack of critical thinking skills is an even more significant problem with more serious consequences. With widespread availability of information and AI tools at the hands of associates, the ability to ask “why” is even more urgent.

Every associate should ask themselves whether the information they just obtained through a search platform, whether AI focused or otherwise, is to be trusted. What’s the source? Is it complete? Is it accurate? Is it up-to-date? Is it sufficiently nuanced to relate to the case at hand or does it just sound like it applies?

If we assume law schools aren’t adequately training emerging lawyers to develop these critical thinking skills, what can be done once these graduates are first-or-second year associates in a firm?

It can be difficult for partners to balance training time with their workloads. This can in turn impact the billable hours of senior team members.

But training new lawyers to ask “why” and giving them opportunities to exercise and strengthen their critical thinking skills is essential. Associates will be practice-ready, bill more efficiently, and reduce the need to write-off their time.

The same partners who bemoan the lack of critical thinking skills should invest in explicit critical thinking training for new associates. In the long run, this will develop productive and successful associates, and improve the ability of our future attorneys to best serve their clients.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Patricia Libby is executive legal editor at AltaClaro, an experiential attorney training platform, where she oversees all practitioner-created and instructed educational content.

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To contact the editors responsible for this story: Jada Chin at [email protected] ; Jessie Kokrda Kamens at [email protected]

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How to Think Like a Lawyer

Last Updated: January 4, 2023 Fact Checked

This article was written by Jennifer Mueller, JD . Jennifer Mueller is an in-house legal expert at wikiHow. Jennifer reviews, fact-checks, and evaluates wikiHow's legal content to ensure thoroughness and accuracy. She received her JD from Indiana University Maurer School of Law in 2006. This article has been fact-checked, ensuring the accuracy of any cited facts and confirming the authority of its sources. This article has been viewed 234,264 times.

Law professors and practicing attorneys can’t talk about “thinking like a lawyer” without bringing up the 1973 film “The Paper Chase.” [1] X Research source In the film, Professor Kingsfield tells his first-year law students: “You come in here with a head full of mush and you leave thinking like a lawyer.” Although law professors remain fond of telling students they’re going to teach them how to think like a lawyer, you don’t have to attend law school to enhance your own logic and critical thinking skills.

Spotting Issues

• On law school exams, students learn to structure their answers using the acronym IRAC , which stands for Issue , Rule , Analysis and Conclusion . Failure to spot all possible issues can derail the entire answer.
• For example, suppose you’re walking down a street and notice a ladder leaned against a building. A worker on the top rung is reaching far to his left, cleaning a window. There are no other workers present, and the bottom of the ladder juts out onto the sidewalk where people are walking. Issue spotting involves not only looking at this situation from the viewpoint of the worker and the person walking on the street, but also the building owner, the worker’s employer, and potentially even the city where the building is located.

• Accurately spotting the issues is important to determine which facts are relevant and important. Emotions and sentiment can cause you to become attached to details that bear little to no importance to the outcome of the situation.
• Thinking like a lawyer requires putting aside personal interests or emotional reactions to focus on real, provable facts. For example, suppose a criminal defendant stands charged with molesting a small child. Police arrested him near a playground, and immediately began asking him why he was there and his intentions regarding the children playing nearby. The distraught man confessed he planned to harm the children. The details of the case may be revolting, but the defense attorney will set aside the emotional trauma and focus on the fact that the defendant was not informed of his right to remain silent before he was questioned. [2] X Research source

• When you learn how to make opposing arguments, you also learn how to hear them, which increases tolerance and allows more problems to be solved cooperatively.

Using Logic

• Syllogisms consist of three parts: a general statement, a particular statement, and a conclusion about the particular based on the general.
• The general statement typically is broad and nearly universally applicable. For example, you might say “All dirty floors show negligence.”
• The particular statement refers to a specific person or set of facts, such as “This restaurant's floor is dirty.”
• The conclusion relates the particular back to the general. Having stated a universal rule, and having established that your particular person is a part of the group covered by the universal rule, you can now arrive at your conclusion: “This restaurant floor shows negligence.”

• Inductive reasoning doesn’t enable you to make any guarantees that your conclusion is true. However, if something happens regularly, it’s probable enough for you to rely on when creating a rule.
• For example, suppose no one’s told you that, as a general rule, a dirty floor shows negligence on the part of a shop employee or shop owner. However, you observe a pattern in several cases where a customer slipped and fell and the judge ruled the owner was negligent. Because of his negligence, the owner had to pay for the customer's injuries. Based on your knowledge of these cases, you conclude that if a shop floor is dirty, the shop owner is negligent.
• Only knowing a few examples may not be sufficient to create a rule you can rely on to any great extent. The larger the proportion of individual cases in a group that share the same trait, the more likely the conclusion is to be true. [5] X Research source

• Lawyers try to win a new case by demonstrating that its facts are substantially similar to the facts in an old case, and thus the new case should be decided the same way as the old case was.
• Law professors teach law students to reason by analogy by proposing hypothetical sets of facts for them to analyze. Students read a case and then apply that case’s rules to those different scenarios.
• Comparing and contrasting facts also helps you determine which facts are important to the outcome of the case, and which are irrelevant or trivial. [7] X Research source
• For example, suppose a girl in a red dress is walking through a store when she slips and falls on a banana peel. The girl sues the store for her injuries and wins because the judge rules the store owner was negligent in not sweeping the floor. Thinking like a lawyer means identifying which of the facts were important to the judge in deciding the case.
• In the next town over, a girl in a blue dress is walking to her table at a café when she slips and falls on a muffin wrapper. If you’re thinking like a lawyer, you’ve probably concluded that this case has the same outcome as the previous one. The girl’s location, the color of her dress, and what she tripped on are all irrelevant details. The important, and analogous, facts are an injury that occurred because a store owner was negligent in his or her duty to keep the floors clean.

Questioning Everything

• Lawyers refer to why a law was made as its ‘‘policy.’’ The policy behind a law can be used to argue that new facts or circumstances should also fall under the law.
• For example, suppose that in 1935, the city council enacted a law prohibiting vehicles in the public park. The law was enacted primarily for safety concerns, after a small child was hit by a car. In 2014, the city council was asked to consider whether the 1935 statute prohibited drones. Are drones vehicles? Would prohibiting drones advance the law’s policy? Why? If you’re asking those questions (and recognizing arguments that can be made on both sides), you’re thinking like a lawyer.
• Thinking like a lawyer also means not taking anything for granted. Understanding why something happened, or why a certain law was enacted, enables you to apply the same rationale to other fact patterns and reach a logical conclusion.

• Ambiguities allow for flexibility, so laws don’t have to be rewritten every time a new scenario comes along. For example, the Constitution has been interpreted to relate to electronic surveillance, a technological advance the Framers couldn’t have imagined.
• Much of thinking like a lawyer involves being comfortable with nuances and gray areas. However, just because those gray areas exist doesn’t mean distinctions are meaningless.

Expert Q&A

• Thinking like a lawyer also requires using judgment. Just because a logical argument can be made doesn’t mean that argument is good. Judgment is necessary to determine whether a given line of reasoning or conclusion is in anyone’s best interests or advances society as a whole, or if it’s destructive and dangerous. Thanks Helpful 4 Not Helpful 1
• Thinking like a lawyer can be helpful in many different contexts. However, cold, rational critical thinking is seldom appropriate when dealing with personal relationships or in purely social settings. [9] X Research source Thanks Helpful 2 Not Helpful 0

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• ↑ https://www.imdb.com/title/tt0070509/
• ↑ http://blog.simplejustice.us/2014/08/24/thinking-like-a-lawyer/
• ↑ https://law.marquette.edu/facultyblog/2009/09/thinking-like-a-lawyer/
• ↑ http://lawreview.law.pitt.edu/ojs/index.php/lawreview/article/view/117/117
• ↑ https://www.law.uchicago.edu/news/learning-think-lawyer
• ↑ http://law.marquette.edu/facultyblog/2009/09/04/thinking-like-a-lawyer/

About This Article

To think like a lawyer, try to approach a problem from several different perspectives to gain new insight into the issue. However, avoid becoming emotionally involved in any one point of view, since it can lead to irrational thoughts that don’t support the facts. For example, look at a given issue and attempt to argue both sides using logic and the facts you have available to you. Finally, don’t make assumptions about anything without facts to back it up, or take things for granted without asking, “Why?” For tips from our Legal reviewer on how to use syllogisms and deductive reasoning to argue your point, read on. Did this summary help you? Yes No

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Jurors in Trump hush money trial end 1st day of deliberations after asking to rehear testimony

Jury deliberations have begun in Donald Trump’s hush money trial, putting the outcome of the historic case in the hands of a dozen New Yorkers who have vowed to be fair and impartial in the face of their unprecedented task. (AP video: John Minchillo)

Former President Donald Trump told reporters after jurors began deliberating in his criminal hush money trial that the charges were rigged and again accused the judge of being conflicted. In his words: “Mother Teresa could not beat these charges.”

Lawyers in Donald Trump’s hush money trial have sparred over evidence and witnesses as they made their closing arguments to jurors who will decide whether the Republican will be the first former American president convicted of a crime.

Jury deliberations in Donald Trump ‘s criminal hush money trial began Wednesday after the panel received instructions from the judge on the law governing the case and what they can take into account in evaluating the former president’s guilt or innocence.

Former President Donald Trump appears at Manhattan criminal court as jurors are expected to begin deliberations in his criminal hush money trial in New York, Wednesday, May 29, 2024. (Charly Triballeau/Pool Photo via AP)

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Former President Donald Trump arrives at Manhattan criminal court as jurors are expected to begin deliberations in his criminal hush money trial in New York, Wednesday, May 29, 2024. (Yuki Iwamura/Pool Photo via AP)

Former President Donald Trump speaks to reporters, with his attorney, Todd Blanche, right, as jurors begin deliberations for his trial at the Manhattan criminal court, Wednesday, May 29, 2024, in New York. (Jabin Botsford/The Washington Post via AP, Pool)

Former President Donald Trump walks out to speak to reporters as jurors begin deliberations for his trial at the Manhattan criminal court, Wednesday, May 29, 2024, in New York. (Jabin Botsford/The Washington Post via AP, Pool)

Former President Donald Trump speak to reporters, with his attorney, Todd Blanche, right, as jurors begin deliberations for his trial at the Manhattan criminal court, Wednesday, May 29, 2024, in New York. (Jabin Botsford/The Washington Post via AP, Pool)

Former President Donald Trump speaks to reporters as jurors begin deliberations for his trial at Manhattan criminal court, Wednesday, May 29, 2024, in New York. (Jabin Botsford/The Washington Post via AP, Pool)

NEW YORK (AP) — The jury in Donald Trump’s hush money trial ended its first day of deliberations without a verdict Wednesday but asked to rehear testimony from key witnesses about the alleged hush money scheme at the heart of the history-making case.

The 12-person jury was sent home around 4 p.m. after about 4 1/2 hours of deliberations. The process is to resume Thursday, when jurors are expected to rehear the requested testimony and at least part of the judge’s legal instructions meant to guide them on the law.

The notes sent to the judge with the requests were the first burst of communication with the court after the panel of seven men and five women was sent to a private room just before 11:30 a.m. to begin weighing a verdict .

What to know about Trump’s hush money trial:

• Follow the AP’s live coverage as deliberations resume.
• A guide to terms used in the Trump trial.
• Trump is the first ex-president on criminal trial. Here’s what to know about the hush money case.
• Trump is facing four criminal indictments, and a civil lawsuit. You can track all of the cases here.

“It is not my responsibility to judge the evidence here. It is yours,” Judge Juan M. Merchan told jurors before dispatching them to begin deliberations, reminding them of their vow during the selection process to judge the case fairly and impartially.

It’s unclear how long the deliberations will last. A guilty verdict would deliver a stunning legal reckoning for the presumptive Republican presidential nominee as he seeks to reclaim the White House while an an acquittal would represent a major win for Trump and embolden him on the campaign trail. Since verdicts must be unanimous, it’s also possible that the case ends in a mistrial if the jury cannot reach a consensus after days of deliberations.

Trump struck a pessimistic tone after leaving the courtroom following the reading of jury instructions, repeating his assertions of a “very unfair trial” and saying: “Mother Teresa could not beat those charges, but we’ll see. We’ll see how we do.”

He remained inside the courthouse during deliberations, where he posted on his social media network complaints about the trial and quoted legal and political commentators who view the case in his favor. In one all-capital-letters post, he proclaimed that he didn’t even “know what the charges are in this rigged case,” even though he was present in the courtroom as the judge detailed them to jurors.

He did not testify in his own defense, something the judge told jurors they could not take into account.

Trump is charged with 34 counts of falsifying business records at his company in connection with an alleged scheme to hide potentially embarrassing stories about him during his 2016 Republican presidential campaign.

The charge, a felony, arises from reimbursements paid to then-Trump lawyer Michael Cohen after he made a $130,000 hush money payment to porn actor Stormy Daniels to silence her claims that she and Trump had sex in 2006. Trump is accused of misrepresenting Cohen’s reimbursements as legal expenses to hide that they were tied to a hush money payment.

Trump has pleaded not guilty and contends the Cohen payments were for legitimate legal services. He has also denied the alleged extramarital sexual encounter with Daniels.

To convict Trump, the jury would have to find unanimously that he created a fraudulent entry in his company’s records, or caused someone else to do so, and that he did so with the intent of committing or concealing another crime.

The crime prosecutors say Trump committed or hid is a violation of a New York election law making it illegal for two or more conspirators “to promote or prevent the election of any person to a public office by unlawful means.”

While the jury must unanimously agree that something unlawful was done to promote Trump’s election campaign, they don’t have to be unanimous on what that unlawful thing was.

The jurors — a diverse cross section of Manhattan residents and professional backgrounds — often appeared riveted by testimony, including from Cohen and Daniels. Many took notes and watched intently as witnesses answered questions from prosecutors and Trump’s lawyers.

Jurors started deliberating after a marathon day of closing arguments Tuesday. A prosecutor spoke for more than five hours, underscoring the burden the district attorney’s office faces in needing to establish Trump’s guilt beyond a reasonable doubt.

The Trump team need not establish his innocence to avoid a conviction but must instead bank on at least one juror finding that prosecutors have not sufficiently proved their case.

While giving the jury instructions in the law Wednesday morning, Merchan offered some guidance on factors the panel can use to assess witness testimony, including its plausibility, its consistency with other testimony, the witness’ manner on the stand and whether the person has a motive to lie.

But, the judge said, “there is no particular formula for evaluating the truthfulness and accuracy of another person’s statement.”

The principles he outlined are standard but perhaps all the more relevant after Trump’s defense leaned heavily on questioning the credibility of key prosecution witnesses, including Cohen.

Jurors asked in the afternoon to rehear at least part of those instructions. They also asked to revisit select key episodes in the trial, though it was not clear why.

The requests covered testimony from Cohen and former National Enquirer publisher David Pecker about an August 2015 meeting with Trump at Trump Tower where the tabloid boss pledged to be the “eyes and ears” of his fledgling presidential campaign.

Pecker testified that the plan included identifying potentially damaging stories about Trump so they could be squashed before being published. That, prosecutors say, was the beginning of the “catch-and-kill” scheme at the heart of the case.

Jurors also want to hear Pecker’s account of a phone call he said he received from Trump in which they discussed a rumor that another outlet had offered to buy former Playboy model Karen McDougal’s story alleging that she had a yearlong affair with Trump in the mid-2000s . Trump has denied the affair.

Pecker testified that Trump told him, “Karen is a nice girl” and asked, “What do you think I should do?” Pecker said he replied: “I think you should buy the story and take it off the market.” He added that Trump told him he doesn’t buy stories because they always get out and that Cohen would be in touch.

The publisher said he came away from the conversation thinking Trump was aware of the specifics of McDougal’s claims. Pecker said he believed the story was true and would have been embarrassing to Trump and his campaign if it were made public.

The National Enquirer’s parent company, American Media Inc., eventually paid McDougal $150,000 for the rights to her story in an agreement that also included writing and other opportunities with its fitness magazine and other publications.

The fourth item jurors requested is Pecker’s testimony about his decision in October 2016 to back out of an agreement to sell the rights to McDougal’s story to Trump through a company Cohen had established for the transaction. Such an agreement is known as an “assignment of rights.”

“I called Michael Cohen, and I said to him that the agreement, the assignment deal, is off. I am not going forward. It is a bad idea, and I want you to rip up the agreement,” Pecker testified. “He was very, very, angry. Very upset. Screaming, basically, at me.”

Pecker testified that he reiterated to Cohen that he wasn’t going forward with the agreement.

He said that Cohen told him: “The boss is going to be very angry at you.”

Follow the AP’s coverage of former President Donald Trump at https://apnews.com/hub/donald-trump .

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