Thinking Like a Professional
"You come here with minds full of mush — and leave thinking like a lawyer." -The Paper Chase
I suspect it is impossible to graduate from law school without encountering the phrase “thinking like a lawyer.” If it does not pop up during an introductory orientation lecture, it surely emerges during a legal skills course or perhaps highlighted and underlined somewhere in a previously owned casebook. While a search for the phrase in the legal literature will generate over 1000 hits, its most memorable use occurs in The Paper Chase, when Professor Kingsfield contrasts this notion of clear and coherent mental analysis with the “minds full of mush” that students show up with.
Far less frequently, if ever, heard by law students or discussed in the pages of law reviews or mythologized in fictional law school pop culture is the phrase “thinking like a professional.” In this Essay, I argue that “thinking like a professional”—i.e., a manner of self-reflection and self-awareness that seeks to harmonize the ethical aspects and social consequences of the practice of law—is an under-valued, or at least under-emphasized, component of legal education that is critically important to the development of what Professor Schiltz so famously referred to as “happy, healthy, and ethical” members of our otherwise “unhappy, unhealthy, and unethical profession.”2
It has always struck me as odd that the standard law school curriculum does not create an opportunity for students to reflect in an intentional, structured, and sustained manner on a fundamental element at the nexus between flourishing both as a person and as a professional: integration. Central to the development of happy, healthy, and ethical lawyers must be an emphasis on the importance of integrating who one is as a person with who one is becoming as a professional. If we want our students to enjoy what the Ancient Greeks referred to as “the good life,” we must create a space for our burgeoning professionals to holistically integrate their inner world, which provides deep meaning and purpose, with their professional obligations and commitments to clients, employers, the court, and society.3
Of course the ABA mandates that all students take a course in Professional Responsibility or Legal Ethics, but rarely do students encounter the types of questions that are essential to their formation as happy, healthy, and ethical professionals: Why did I come to law school in the first place? How is law school changing me? What type of legal professional will/should I be? With this specialized knowledge and set of skills, plus the access, power, and prestige, that come along with these initials J.D., what duties will I owe my community? How will I balance my personal life with my professional life? How will I resolve the tension, if and when I encounter it, between my personal hopes, dreams, and passions and the responsibilities owed to and demands made by law firm partners, or a corporation’s board of directors, or a client who is in dire straits, or my neighbors both known and unknown who have the right to expect that as an officer of the court, I will promote the common good and defend the ideals of justice for all under the law?
Perhaps, such questions are rarely, if ever, engaged because they are, frankly, too mushy. Having taught Professional Responsibility and requiring reflection on these questions, I certainly know that many of my 2Ls and 3Ls confronted them with mixed emotions. For many enrolled in the required PR class, curricular expectations are focused solely on learning the black letter rules (i.e., passing the MPRE), discussing the seminal cases, and reviewing the scope of activities that will and will not get one sideways with the Board of Professional Responsibility. Of course, I cover this material. But, I work hard to prevent my students from leaving my course with the misunderstanding that training in legal ethics and maturing as a professional begin and end between the covers of a disciplinary code book consisting of rules, cases, and formal opinions.
Rather, I am convinced that we must teach “thinking like a professional,” and this requires confronting these deeper, more introspective, often mushier questions set forth above. Reflecting on them is necessary because the first step in learning to think like a professional is connecting with who one is a person. A confident awareness of who one is as an individual and as a member of multiple communities is integral to the journey of professional formation and, ultimately, to an ethical and fulfilling law practice. One must be able to recognize that nagging internal voice—that intuition each of our students shows up with on the first day of law school—and then be able to discern what it says and what it means. This is a fundamental component of the professional and practical wisdom upon which our students’ clients will one day rely.
Ultimately, clients do not hire (merely) experts in legal research, former journal editors, or moot court champions. Of course, these skills, credentials, and honors are important for establishing confidence and credibility. But most clients will also desire a multi-dimensional legal professional who is equipped with the ability to engage on a level beyond mere legal analysis. And, on these occasions when, for instance, moral concerns are in the mix or compassion is called for, one trained only in the skills of “thinking like a lawyer” runs the real risk of coming-up short.
Indeed, one can only be completely present—ready to listen and be in a constructive, successful relationship with another—to the extent that one is herself in a healthy and integrated personal place of wellbeing. To the extent one’s legal education has divorced legal analysis from the human implications for individuals and society, that legal professional is not going to be in touch with her own intuition, moral commitments, and sense of purpose. Over the course of a career, such a lawyer will struggle to flourish personally and professionally.
Indeed, how can a lawyer guide a client if the lawyer himself has lost his way? How can a lawyer resolve a client’s conflict while the lawyer’s own internal conflict rages? Or beyond the concerns of client relationships, how can one generate a sustained level of success for her legal employer if she dreads waking up each morning and views her practice as misery? Again, these are the types of questions that legal professionals-in-development should be spending some time pondering—despite the inherent mushiness they might invite. Unfortunately, too few law students in the midst of developing their own professional identities have a sustained classroom opportunity for organized and rigorous reflection on this domain of concerns. And, too frequently, the failure to address these issues during the years spent in law school reverberates with unfortunate consequences in the lives of our former students.
Below I have compiled a fictionalized letter based on a number of conversations I have had with practicing lawyers, some of who are former classmates and some of who are former students:
Dear Professor Perry-
I am writing to seek your advice regarding my life.
I graduated from law school two years ago, passed the bar exam, and I have been in the practice for about 18 months.
I am earning a very good salary – enough to make my monthly school loan payments, drive the standard issue BMW, make the mortgage on my new house, and drink $3 cups of coffee. Financially speaking, things are pretty good. I think I’m earning about twice what my father earned when he retired. I’ll turn 29 next month.
But I’m writing today because I am restless. I feel disconnected and empty. I do not enjoy my practice, much less feel fulfilled by it. In fact, I dread the thought of going into work everyday. And I don’t know what to do.
I applied to law school in the first place because everyone told me I would make a great lawyer. Throughout high school and college, I worked hard – extremely hard – to receive very good grades. Moreover, teachers would often tell me that I was intelligent, thoughtful, and persuasive in classroom discussions. I was routinely recognized as someone with a very bright future. In college I enjoyed courses in the humanities, but felt pressure to major in finance because my parents insisted that a business degree would yield a more lucrative return on their investment in my education. After graduation, I worked an entry-level job at Merrill Lynch for about 4 months before I realized that I was miserable. I had a couple of friends from college who had just started law school, and they encouraged me to consider that as an exit strategy. I also knew that my parent’s disappointment with me leaving the business world would be mitigated if they knew I would be turning to a career in the law. And, of course, I had heard about the six-figure starting salaries and five figure signing bonuses being paid by top firms in big cities.
So, I scrambled to take the LSAT and complete the applications. I was accepted at a Top 20 school and given a partial scholarship. Even with the school’s financial assistance, I still needed to borrow about $100,000 to cover 3 years of tuition and living expenses.
I worked very hard in law school, graduated in the top quarter of my class and landed the law firm job I have now. My parents are proud, and my friends are impressed – although I rarely spend much time with any of them because I’m in the office by 7:30 and rarely home before 8pm – even on most weekends.
But it’s not the long hours that I’m complaining about. It’s really more about how I spend my day. I’m just not interested in the minutia of corporate deals. I don’t get excited helping already rich clients get richer or big corporations get bigger. For approximately 12 hours a day, I feel completely disconnected from who I am and what I am personally passionate about. If I am being completely honest, I just don’t give a damn about my law practice or the clients I work for.
And furthermore, I don’t think the partners and older attorneys supervising me have a clue about what really matters to me. At least they’ve never gone out of their way to inquire. These guys just seem to want me to work as many hours as they work – with the idea being that we’ll all get richer. Despite the fact that I’d be financially comfortable working & getting paid for about 2/3 as many hours as I’m currently billing, I don’t feel as if I have much independence or control over the business-components of my practice – everything is dictated by my supervising partners. And if I approached any of them and raised metaphysical questions about one’s life purpose, balance between personal and professional priorities, or finding deep meaning in one’s work, I think red flags would be raised about me.
I guess I’m really wondering about these bigger questions. With the exception of a couple of philosophy courses as an undergraduate, I never really confronted questions designed to foster self-awareness – certainly never in law school. And now I’m afraid it’s too late.
Desperate to discover the good life
Over the course of their legal education, our students evolve both personally and professionally along complex and rich domains. They learn an entirely new language and way of viewing the world. They see themselves and their society differently after completely their course of study. The fact that so few of our students have an organized and sustained opportunity to foster self-awareness and reflect seriously on these fundamental developments is a failing we must acknowledge and attempt to prevent.
In my PR course I share with the students an anecdote entitled “The Blizzard of the World,” told by the educator Parker Palmer:There was a time when farmers on the Great Plains, at the first sign of a blizzard, would run a rope from the back door out to the barn. They all knew stories of people who had wandered off and been frozen to death, having lost sight of home in a whiteout while still in their own backyards.4
Throughout the semester I emphasize the importance of mindfulness and awareness regarding the personal and professional blizzards my students may encounter (or be encountering). We read stories of lawyers who have wandered off into the blizzard, lost their moral bearings, their professional standing, and, for some, their most prized personal possessions. And I highlight Palmer’s ominous and provocative comment that “some of us fear that we, or those we love, will become lost in the storm. Some are lost at this moment and are trying to find the way home. Some are lost without knowing it.”5 In part—perhaps in large part—I view my course on legal ethics and professionalism as an opportunity for students to run a line from the back door out to the barn so that as a professional, they will be able to find their way home again if the storms rage and they begin to lose their vision.
I know that many of my students, during their law school journey, lose sight of the original vision they had when they first applied to law school. Thus, I return to my students a copy of their personal statement submitted with their original admission application to law school. I know from conversations that it is illuminating for many of them to recall—in their own words—who they were and what they envisioned when they first dreamed of starting down this path to becoming a legal professional. As a part of my last day lecture, I urge them not to make the mistake of ignoring their own humanity and their own sense of purpose and that which provides deep meaning in their lives, or the mistake of minimizing the importance of an authentic, integrated personal-professional identity. This distribution of their personal statements—always on the last day of class – is my final attempt to help (re)connect these burgeoning professionals with their true selves, their own intuitions, their own gut feelings – the “mush” that they showed up with on their first day of law school.6
Lest I be misunderstood, I concur with a point made by the recent Carnegie report, Educating Lawyers, that learning to “think like a lawyer” has an important, formative role to play in the creation of lawyers.
Within months of their arrival in law school, students demonstrate new capacities for understanding legal processes, for seeing both sides of legal arguments, for sifting through facts and precedents in search of the more plausible account, for using precise language, and for understanding the applications and conflicts of legal rules. Despite a wide variety of social backgrounds and undergraduate experiences, they were learning, in the parlance of legal education, to “think like a lawyer.” This is an accomplishment of the first order that deserves serious consideration from educators of aspirants to other professional fields.7
And yet, as the Carnegie report also notes, too infrequently do our legal curriculums also include opportunities to engage the “moral imagination” and foster reflection upon the “social and cultural contexts of legal institutions and the varied forms of legal practice.”8 My point, in short, is that rooted in a history stretching back to the late nineteenth-century, a legal pedagogy focused on a hard “think like a lawyer” mentality unleavened by a mushy “think like a professional” sensibility threatens to produce legal professionals incapable of balancing the complex demands of personal wellbeing and professional service. I am merely proposing that full engagement as a legal professional requires both thinking like a lawyer and thinking like a professional. In other words, we must be about teaching legal skills, knowledge, and theories, but also about encouraging our students to reflect, explore and develop a deep awareness of the intersection between who they are as a person and who they are becoming as a professional.
We must realize that we lead our students along a journey of professional development, and this journey is one that cannot be separated from the journey of personal development that our students are simultaneously undergoing. It is neither possible nor desirable to separate or compartmentalize this professional development from the inevitable personal evolution that is also occurring during those years one spends in pursuing her J.D. This journey of self-discovery and professional maturation that each of our students embarks upon is simultaneously simple and profoundly difficult. Indeed, it is not always easy to be self-consciously aware of who one is and who one is becoming. Yet, such reflection is absolutely essential.
Professionals, regardless of the art they practice, are expected to provide more than mere technical expertise. A professional needs to hear what her gut is saying. She has to be able to recognize that inner voice – that intuition – and then be able to trust it. This is a fundamental component of something Aristotle referred to as practical wisdom9 – or prudence or what I am calling “thinking like a professional.” It is this ability to apply one’s intellectual and technical skills in concert with reflection upon what is the best thing in this particular situation. At the end of the day, this what our students’ clients will be relying upon them for.
We must remember that the law does not exist in a vacuum and be careful to avoid giving our students this false impression. Surely the law does not originate in the black letter holdings of a case or the bold face print of a Restatement. Rather, the law fundamentally exists in relationships between people: lawyers and clients; lawyers and other lawyers; lawyers and regulators; lawyers and witnesses or deponents or judges. In my brief practice career, before entering academe, I discovered that at the end of the day being a legal professional is about engaging other people as much, maybe more, as it is about engaging theories and facts. Despite my firm’s slate of sexy entertainment and corporate clients and high profile matters, the best days in my practice were those in which I was able to connect with an individual client experiencing an expensive, bewildering, and scary legal dilemma, often with attendant social and ethical implications. In these moments, being trained merely to think as a lawyer would have left both me and my client frustrated.
In order to achieve success on these days, I had to be able to listen and to connect to a person in a web of confusion, not merely be able to spot the issues, apply the legal doctrines, and orchestrate the winning strategies. Often, achieving success for my clients required a “moral imagination” or practical, professional wisdom in combination with my ability to analyze the legal dynamics.
As an attorney, some days I was more successful than others, but on the good days, I am confident that both my client and my employer benefited from my attempt to harmonize my thinking as both a lawyer and a professional. Despite the mushiness of it all, I am convinced that the legal academy can and must more systematically and adequately address this issue of harmonization, lest we perpetuate a ringing dissonance between the lawyers we produce and the professionals we desire.
1 The Paper Chase (Twentieth Century Fox 1973).
2 Patrick J. Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession, 52 Vand. L. Rev. 871-951 (1999).
3 See generally Lawrence S. Krieger, The Inseparability of Professionalism and Personal Satisfaction: Perspectives on Values, Integrity and Happiness, 11 Clin. L. Rev. 425, 426 (2005) (“I will argue (1) that satisfaction and professional behavior are inseparable manifestations of a well-integrated and well-motivated person; and (2) that depression and unprofessional behavior flow from a loss of integrity - a disconnection from intrinsic values and motivations, personal and cultural beliefs, conscience, or defining parts of their personality and humanity.”).
4 Parker J. Palmer, A Hidden Wholeness: The Journey Toward An Undivided Life 1-2 (San Francisco, 2004).
6 The exercise is particularly poignant for my 3Ls, who, if taking my course in the spring, are sitting in one of their final law school classes.
7 William M. Sullivan, et al., Educating Lawyers: Preparation for the Profession of Law 186 (San Francisco, 2007).
8 Id. at 188.
9 Aristotle, Nicomachean Ethics.