We’re excited to welcome to back 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. Today he is sharing with us the importance of preparation.
If you’re starting law school, or continuing law school, you might want to take some time to reflect on what it means to be a lawyer, and what it means to be excellent. If you have been following the Summer Olympics in Rio, you may have been dismayed to see that there is no “lawyering” event. But you might try to develop yourself into an Olympic-quality lawyer, by doing what the athletes do: learn the best ways to play your game, innovate to find even better ways, and practice. Preparation is everything.
A lawyer is an expert. The expertise that the lawyer wields is twofold. First, the lawyer’s expertise includes knowledge of how the legal system works—how all the written and unwritten procedural rules apply to guide the determination and application of the law. Asking how the legal system works is the same as asking how we, as a society, make decisions, with all the concerns for fairness and legitimacy this entails. Lawyers are expert in society’s decision-making processes. Second, the lawyer’s expertise includes substantive rules of law, like the rules protecting patented technology or forbidding the sale of cocaine. Once you begin to practice, you will see clearly why no one can master more than one or two areas of law—the key is mastery of an identifiable body of procedure and substance. Even if you are a great gymnast, you probably won’t also be a great swimmer.
The core work of the lawyer is not to argue about what the law should be, although this sometimes is salient, and is often emphasized by teachers in law school. Rather, the work of the lawyer is to argue about and determine: 1) what the applicable law is, 2) what the facts are, and 3) how the facts fit into the applicable law. These questions are complex enough, because there are multiple possibilities for applicable law, or facts to emphasize, or arguments to deploy. Choosing the right arrows from the lawyer’s quarrelsome quiver and fitting them together elegantly to craft an overall argument that will persuade the decision-maker takes strategic thinking, and creativity. See if you can surprise your law school instructor by identifying some creative arguments she or he may not be considering! Later on, you can surprise and delight your clients the same way.
Another joy of lawyering is to be persuasive when you’re right. It’s also pretty great to be able to counter your opponent when he or she is wrong. In legal practice, as in law school, preparation is everything. By evaluating each of the components of your position, and of your opponent’s, you will be able to see which arguments are available to you and which are available to your opponent. You will be able to maximize the strength of your arguments and you will be able to prepare with responses to those of your opponent. Practice doing this whenever you brief cases or other legal argumentation, by identifying and critiquing each discrete argument. Don’t just record what happened—categorize it. This is a core function of legal analysis, and of critical thinking. It is hard work, but it is essential to excellence.
If you identify the possible arguments on your side (points) and develop ways to counter each argument that your opponent may use (counterpoints), you can maximize your chance of winning on points, just like the Olympian you are. Winners in every sport, and in every other area of competition, know that preparation maximizes the chances of success.
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Thanks, Joel!
The Tools of Argument: How the Best Lawyers Think, Argue, and Win by Professor Joel Trachtman provides a wealth of practical legal knowledge in a concise and readable form. A great book for summer enrichment, The Tools of Argument, provides some of the most valuable information that students will gain in the study of law. It does so through a unique ‘critical thinking’ perspective that enhances students’ learning across the 3-year curriculum, while helping them confidently create winning arguments to engage professors and peers.
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