We’re excited to welcome 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. In his previous post, If X, Y, and Z, then A: Legal Analysis is Simple, Professor Trachtman shared some tips on conquering legal analysis.
Today he’s here to share a helpful tip for becoming a better law student. Welcome back!
Learning to think like a lawyer is at the core of law school education, and it is (yes!) easier than you might anticipate.
To begin to practice, I suggest starting now to sensitize yourself to the legal issues in everyday life. When you read the newspaper focus on the legal stories, or the legal aspects of many political and business (even sports-related!) stories. If the reporter has emphasized the legal issues, make sure you understand what they are. If it is a story about a court decision, google the court decision and read it, and try to understand the winning argument and any dissenting arguments. For example:
- Was there a precedent followed?
- Were there problems with the procedure that brought the case to trial?
- Was there a question of evidence?
Try to understand what the real world issue is and how it translates into legal terms.
A lot of law school, and law practice, is taking real world issues and translating them into legal terms – the legal system has its own language and set of concerns, and the most important thing you will learn in law school is how to see the world through the legal system’s lens.
How to Frame the Issues
Creative lawyers and law students (professors adore students who do this) frame issues in unexpected or novel legal ways. Look at those news stories and court cases and think about how the issues have been framed. A reframing of the dispute is, quite literally, a “game-changer.” Therefore, at the moment of definition of the matter in dispute, it is important to think carefully about all of the alternative ways in which a dispute might be framed.
- Is it a question of property rights or a question of environmental protection?
- Is it a question of murder or of self-defense?
- Is it a question of enforcement of contract or one of liability for civil wrongs?
Proving the Point
A dispute about flame-resistance standards for furniture illustrates my point. In 1975, California enacted a standard that requires furniture to be sufficiently flame-resistant to avoid ignition from a flame of a specified size. In order to meet this standard, each piece of furniture sold in California is treated with a substantial amount of chemical flame-retardants. Because of California’s size and importance in the North American market, most furniture sold in the U.S. and Canada conforms to California’s standards: most furniture manufacturers sell a uniform product throughout this territory. While the flame resistance won’t prevent the furniture from burning in a fire, it will limit the ability of the furniture to initially catch fire. The fire-prevention benefits are thought to be modest. But, it would be difficult to criticize framing this as a fire-prevention measure without engaging in complicated cost-benefit analysis.
In more recent years, however, it has been learned that some of the chemicals used to give the furniture its fire-resistant characteristics may cause cancer or impair brain development. Therefore, it would no longer be sensible to understand the California standard simply in terms of its fire-prevention role. We must also understand the California standard in terms of health and environmental concerns. Once these concerns were discovered, it was appropriate to re-frame the decision whether to continue to apply California’s standard—broadening the considerations. The movement against flame retardants began to gather steam.
The chemical companies that supply the fire-retardant chemicals saw the possible end of a profitable business. They engaged in some creative lawyering, reframing this as a civil rights issue. How? They suggested that those at risk for fires are the poorest, and are ethnic minorities, and that a move away from fire retardants would disproportionately harm these people. Of course, an easy response is that the health effects of these chemicals also harm these people, but the health advocates would have to show that the health effects are worse than the fire effects. So, by reframing the fire-retardant chemical debate as a debate about disproportionate adverse effects on minorities, the chemical companies are able to strengthen their side of the argument.
One of the most creative and valuable things a lawyer can do is to frame (or reframe) issues to make a case more compelling.
This may mean characterizing a dispute as a different type of case than the way in which it was originally understood.
If you read the newspaper with this in mind—you will begin to develop this skill, which is essential for success in law school and law practice.
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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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And check out these helpful posts:
- If X, Y, and Z, then A: Legal Analysis is Simple
- Starting Law School in the Fall?
- Do I Really Have to Read the Cases?
- Be Ready to Throw Your Writing Style Out the Window
- The Only Way Around is Through
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And then after your first year, you can laugh at how terrible most journalists are at reporting legal matters.