In Lawtalk, The Unknown Stories Behind Familiar Legal Expressions, legal scholars survey the history of the phrase “thinking like a lawyer.” They conclude – apropos lawyers trying to agree on anything – that the meaning remains unclear. We invoke the phrase, say the authors, to connote “both affinity with common sense and separation from it. It is used to signify both prudential wisdom that can wrestle with complex and intractable moral problems and a blinkered and mechanical outlook that makes for a diminished capacity to solve them. The ambiguity of the phrase mirrors the timeless mixture of appreciation and disdain for lawyers, even among themselves.”

Such contradictions are evident in other attempts to define “thinking like a lawyer.” For instance, offers the following thinking strategies for new law students trying to grasp the legal mindset:

1. Accept ambiguity

2. Don’t be emotionally tied to a position

3. Argue both sides

4. Question everything

This is surely a little more helpful, but not the most flattering definition of “thinking like a lawyer.”  And many lawyers question the efficacy of this four-fold strategy in actual legal practice. After all, how many problems are solved adopting a skeptical, disputatious, and ambivalent mindset? To be fair, the strategies are designed for law students. Still, are not these students our future lawyers whose training will affect their judgment in legal practice?

Can we achieve a more sympathetic, more consistent – and ultimately more meaningful – definition of “thinking like a lawyer”?  This is our quest in these posts.