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What it means to think like a lawyer

United States trial lawyer Reuben Guttman believes that challenging that which is considered 'common practice' in society has always been, and should always be, one of the ultimate callings of any lawyer.

Until 1967, it was a criminal offence for couples from different racial backgrounds to marry in the state of Virginia. tiagozr

Prior to the Supreme Court's 1954 decision in Brown v. Board of Education 'separate but equal' was accepted as a legally sufficient mode of delivering public education in the United States. Never mind the psychological impact on students and the potential for school administrators to shift resources to white schools; all was appropriate because the practice was widely accepted.

Prior to 1963, it was perfectly acceptable to bring an individual accused of most felonies to trial even if he or she was not afforded the right to counsel. All that changed with the court's decision in Gideon v. Wainright.

Prior to 1967, it was a crime for couples of different races to marry in the state of Virginia. Of course, the recently released movie, 'Loving,' brings to the big screen the case, Loving v. Virginia that resulted in the successful challenge of an accepted practice that we now see - a half century later - as so obviously wrong. The case was argued on behalf of the Lovings by two attorneys appointed by the American Civil Liberties Union, Bernard Cohn and Philip Hirschkop.  At the time, they argued the case, Cohn was 34 years old and Hirschkop was three years out of law school.  

Prior to 1974, a public-school district could terminate a teacher because she was pregnant. That too was an accepted practice but that too changed when a young Cleveland, Ohio school teacher took on the Cleveland consolidated school district resulting in the Supreme Court's opinion in Cleveland Board of Education v LaFleur.

One could go on and on with more examples but you get the point; challenging that which may be accepted as common practice is what lawyers do.  To a lawyer who has been properly trained to engage in critical analysis, the defense that "everyone does it,” could just as easily mean that everyone is wrong because the only stated rationale for the behavior is that "everyone does it." Of course, “the everyone does it justification” - placed in historical context - is so obviously insufficient otherwise slavery, apartheid, and other outrages of the human existence would be justified.

Perhaps the greatest achievements of the western rule of law involve challenges to accepted practice. And more often than not, the challenges are waged not by the well-heeled lawyers in high office towers but rather by the gutsy practitioner – sometimes in the wrinkled suit -- who realizes that at the end of the day one person – with critical thought and precision in advocacy – standing before a judge, judicial tribunal, or jury of lay persons, can successfully challenge accepted behavior.   

Law students, of course, believe that there is an accepted trajectory for the progression of one’s career. Participate in a case, argue a motion, stand before a jury, argue appellate matters, and after many years your skills will be seasoned for the big case. It just does not work like that. The history of the game changing cases is that they are litigated by lawyers whose time has arrived only because their client – in dire straits – has run out of choices. And more often than not, the most unsuited advocates end up being perfectly suited for the task because they are motivated by the fear of their predicament and not dissuaded by the depth of the challenge which, because of a dearth of experience, they cannot possibly measure.                    

No matter what the skill level is for the advocate, the process starts with a fundamental question; does a fact pattern present a fundamental injustice or impropriety? It is a gut level litmus test that ignores for the moment the justification that the practice is accepted or pervasive. It is an instinct that appreciates that too often in our history many have followed the masses to the detriment of others. It is an instinct ingrained in the skill of thinking like a lawyer and one which inspires the level of curiosity to engage in the investigatory legal research that might reveal a glimmer of guidance in the resolution of prior legal controversies. This we call the doctrine of stare decisis.

The idea of thinking like a lawyer has led to resolutions in a broad array of circumstances while rejecting the 'everyone does it justification.' Over the course of legal history, thinking like a lawyer has led to civil and criminal prosecutions of the electrical industry, the pharmaceutical industry and the oil industry for practices that were pervasive and unquestioned in many circles. It has led to the creation of legal constructs including the tort doctrine of “attractive nuisance” and the labor law doctrine of “joint employer.”   These are doctrines that evolved through critical analysis of the realities of the human element; seeing the shades of grey and not viewing things in black and white terms. Hence, the parents of a child who crosses into the yard of a next-door neighbor and drowns in a swimming pool, may invoke the doctrine of attractive nuisance because the law now recognizes the human element – the curiosity of children – and because erecting a fence is an easy fix. Or, in the labor law context, the law may impose liability on a non-direct employer which imposes through contract or practice, conditions of employment for individuals who are on the payroll of another entity.            

There is a point to this discourse. At least I hope so. I fear that somewhere along the way, the tradition of thinking like a lawyer; like a Louis Brandeis, Thurgood Marshall, or a Ralph Nader has been lost. Our history has demonstrated that with critical thought, one advocate – albeit a scared but gutsy one -- can make a difference for countless individuals. And so, I write this as a reminder for those in law school and those starting their legal careers and even the crusty practitioner whose skills – when put to use – can make a difference.       

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17 January 2017

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