Transcript
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every law school promises to teach its
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students to think like lawyers but what
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does that mean what does it mean to
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think like a lawyer at the Texas A&M;
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School of Law we break the process of
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thinking like a lawyer into discrete
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steps and teach those steps to our
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students explicitly let’s look at a very
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simple example a problem that requires
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no prior legal experience to understand
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a jogger runs along a beach past a sign
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that says $100 fine for littering a few
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steps past the sign the jogger pauses to
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eat a banana when he’s done he throws
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the peel on the ground a police officer
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sees the jogger drop the peel she
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recalls that her supervisor did not
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issue a littering ticket to a person who
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poured coffee on the ground but the
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supervisor did issue a ticket to someone
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who threw a candy bar wrapper on the
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ground should the police officer ticket
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the jogger legal reasoning or thinking
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like a lawyer is rule-based reasoning
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lawyers always look for the rule that
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governs the conduct in question here the
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rule is simple $100 fine for littering
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but what does littering mean here
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littering is potentially ambiguous when
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part of a rule is ambiguous lawyers look
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to see how the rule was applied in Prior
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situations prior situations are called
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precedents by comparing the facts of the
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current case to the facts of precedents
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lawyers can predict how the rule will
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apply in the current case this process
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of comparison is called analogical
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reasoning or reasoning by analogy
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analogical reasoning is just a fancy
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term for something we all do every day
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comparing two or more things to see how
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similar they are here we have two
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precedents that can help us understand
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what littering means in the first case
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someone who poured coffee on the ground
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was not ticketed for littering in the
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second case someone who threw a candy
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bar wrapper on the ground was ticketed
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for littering
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so here’s the point of comparison is a
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banana peel more like coffee or more
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like a candy bar wrapper if the banana
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peel is more like the coffee then the
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officer should not issue a ticket but if
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the banana peel is more like the candy
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bar wrapper then the officer should
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issue a ticket
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how would a lawyer compare these three
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items by figuring out what attributes
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defined them lawyers call such
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attributes factors let’s see what
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attributes or factors we can come up
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with for these three items to keep track
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of the factors
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we’ll use a device I call the case grid
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let’s list our three cases coffee candy
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wrapper and banana along the top will
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list our factors down the left column
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and we’ll leave the last row for the
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result ticket or no ticket we already
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know the answer in two of the cases so
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we can fill those in now we’ll leave a
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question mark for the banana peel a
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creative lawyer will come up with as
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many factors as possible but in the
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interest of time let’s limit ourselves
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to just three our first factor or point
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of comparison will be liquid or solid
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the coffee is liquid but the candy
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wrapper and banana peel are solid
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our second factor will be whether the
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item is natural or artificial the answer
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is easy for the wrapper artificial and
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the peel natural but what about coffee
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coffee beans are natural but brewed
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coffee is a manufactured product so
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coffee could go either way we’ll put a
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question mark for coffee
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our last factor will be whether you
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would put the item in a trash can coffee
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probably not a candy wrapper definitely
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and a banana
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probably so now we have three factors on
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which to compare the three items we
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don’t have enough information on the
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second factor natural or artificial for
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coffee so let’s disregard that factor
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sorting ranking and discarding factors
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is another think like a lawyer skill
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that leaves two factors and on both the
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peel is more like the wrapper because
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the peel is more like the wrapper on the
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two factors analogical reasoning
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dictates that it will be more like the
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wrapper in the result two therefore the
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officer should ticket the genre that in
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a nutshell is how a lawyer would solve a
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problem like this identify the rule use
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precedents to resolve ambiguities in the
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rule use analogical reasoning to compare
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the precedents with the current case and
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come up with an answer now lawyers and
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most people could solve this problem in
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their heads in an instant but that’s
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the point the point is this if you have
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a teacher who breaks the process of
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thinking like a lawyer in two discrete
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steps you will learn the process much
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more quickly that’s exactly what we do
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at Texas am I’m Professor John F Murphy
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and this is the Texas A&M; school of law
