Today we’re excited to welcome Joel Trachtman, Professor of International Law at The Fletcher School of Law and Diplomacy, and author of The Tools of Argument: How the Best Lawyers Think, Argue, and Win. Professor Trachtman is here to share some tips on conquering legal analysis. Welcome!
How to Think Like a Lawyer
The core technique of legal analysis is rarely taught explicitly in law school, but it is critical to student performance and effective practice.
Lawyers break legal questions down into components, or elements, of a crime or of a claim, and then analyze each component separately.
So, if the elements of the crime of murder include intent, causation, death, and lack of excuse, we analyze each of these components separately and then synthesize the analyses for a complete understanding.
It’s not rocket science, folks. But it does differ from what may be the layperson’s (or new law student’s) approach, which is to reach a conclusion less through the discrete analysis of components, but more holistically or impressionistically.
People often conclude “that’s murder” or “that’s theft” or “that’s fraud” in the sense of common parlance, without going through the analytic steps required by law. Indeed, behavioral scientists have confirmed that human beings, more than we’d like to admit, reach conclusions first and analyze later.
This style of analysis and synthesis is also the secret of good legal writing, not to mention good test-taking.
In the first paragraph, or section, of your argument, break the crime or claim into elements: analyze the claim. In subsequent paragraphs or chapters, examine each element separately to determine whether it is factually satisfied.
Once you are finished, it is easy to “synthesize” or look at all the elements and see whether they comprise the crime or claim in question. This is the concluding paragraph or chapter.
Yes, it is dry and stylistically predictable, but its beauty is in the elegance of its function.
Good legal writing, like other expository writing, should be parsimonious—including precisely what is necessary to reach the conclusion, and nothing more.
Think of “If-Then” Statements
All legal prohibitions or requirements, including those in a contract, take the logical form of “if-then” statements: if x, y, and z, then a.
The initial analytical question simply asks “if what?” What is included in the “if” portion of the if-then statement? The answer is that those are the elements of the crime or claim, or of the contractual obligation.
In order to determine “if what,” we simply read the law or contract and determine what conditions it specifies for the relevant legal consequences. Once we know the elements, we know what goes in the “if” portion. The law specifies the consequences: the “then” portion.
Patience and critical thinking are required because this analytical method is iterative and inductive—we don’t know which potential “if-then” statements to consult until we see if some of the “ifs” are satisfied. We look at those “if-then” statements that are potentially satisfied by the facts we initially identify, and then pursue an evaluation to see if they are indeed fully satisfied.
A Practical Example
For example, for legal responsibility for a civil (non-criminal) wrong, or “tort,” there must be:
- (i) a duty
- (ii) a violation of that duty
- (iii) causing
- (iv) harm
- (v) to a person owed the duty
- (vi) where there is no defense such as necessity or contributory negligence
If each of these conditions is met, then there is legal liability for the tort.
Thus, legal analysis consists of (a) breaking down each legal rule into a list and (b) evaluating whether each condition is met so as to result in legal responsibility.
Analysis and synthesis answer every question regarding whether an act violates the law or is required by law. The analysis breaks the prohibition or requirement into component conditions then sequentially evaluates whether each condition is met. The synthesis merely observes whether each condition is met. It’s simple.
If you can learn to do this—if you can recognize the factual parameters of each rule and then address the definitional and factual difficulties of each parameter—then you are well on your way to thinking like a lawyer.
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Very helpful, thanks!
Joel Trachtman is Professor of International Law at The Fletcher School of Law and Diplomacy and author of The Tools of Argument: How the Best Lawyers Think, Argue, and Win.
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