Deconstructing Thinking Like a Lawyer: Analyzing the Cognitive Components of the Analytical Mind

Abstract

Legal educators maintain that a principal goal of legal education is to train students how to "think like a lawyer." Despite the popularity of the phrase, the legal literature is surprisingly lacking in detailed discussions of the cognitive attributes of "thinking like lawyer." Some definitions that have been offered are circular; they state that individuals are thinking like lawyers when they are thinking through the tasks that most lawyers do. Other definitions reflect a trend in recent years to expand the concept to include non-cognitive skills that pertain more to "lawyering" generally than to the cognitive processes involved in legal thinking.

This article therefore fills a void in the legal literature by proceeding to examine, step-by-step, the cognitive components of what it means to think like a lawyer. The article begins by discussing the development of modern law school pedagogy and by evaluating current conceptions of legal thinking which have divided the skill into cognitive and practical components. The article next surveys empirical research on legal thinking by examining recent research on personality and learning styles as well as research on law student and lawyer surveys. The article then analyzes the cognitive skills tested by the paradigmatic examinations relevant to law school and lawyering, the Law School Admissions Test and the bar examination. In this analysis, the article includes insights I learned by participating in a conference in August 2006 sponsored by the National Conference of Bar Examiners. The article concludes by drawing upon these previous sections to delineate and discuss in detail specific cognitive components of legal thinking. To inform this discussion, the article references results of a recent survey I conducted of 241 second and third-year students at Regent University School of Law in which I asked them to describe what it means to "think like a lawyer." The article also includes as an appendix a flow chart that identifies the cognitive steps lawyers address in conducting legal problem solving.

Keywords: thinking like a lawyer, legal education, cognitive

JEL Classification: K10, I21, K40