Villanova Law Review, Vol. 47, No. 1 (2002), pp. 161-279

Abstract

What do lawyers do, and how do they think in practice? Certainly, lawyers analyze law, and apply it to facts: the law school answer. This article proposes a more fluid notion: that lawyering prompts a mindfulness associated with decision-making, a mindfulness that engages and integrates a number of different capacities. Lawyers engage in a complex and unique thought process that relies only partially on rigorous analysis of legal principle. Lawyers must also integrate non-legal and even non-conceptual realities in considering client decisions. This integration emerges from the lawyer-client relationship and flexes to the demands characteristic of lawyering tasks. Lawyering is thus a form of legal decision-making, equivalent in force and effect to judging or legislating.

This description crystallizes a theory of lawyering developed over the last half-century. As discussed in Section II below, American legal culture has self-consciously and explicitly worked towards a theory of what lawyers do as lawyers. Starting with the Langdellian reforms (now over a century old), various realists, clinicians, philosophers, and political and scientific critics, have developed a consensus about the centrality of lawyer judgment as an influence on law in our culture. Particularly over the last ten years, a rich debate has sprung up in disparate, cognate areas: the role of the lawyer in his or her relationship with clients; the integration of neutral practice into an adversary system; the contextualization of lawyering behavior through inquiries based on social science, particularly anthropology, sociolinguistics and cognitive science; and a separate contextualization, by critical voices, locating lawyering within political and cultural biases or seeking to unbundle the skeleton of lawyering for action by others. Lawyering is decision-making in phases and is strongly dependent on the bond between lawyer and client. The phases of lawyering process – assessment, decision and action – bear a dynamic relation to each other. They rarely separate into distinct tasks. When they do, it is never for very long. Indeed, this decision-making process centers and guides the characteristic legal tasks of negotiation, advocacy and planning. These jobs bring realities to bear that further shape the lawyer's mind and the lawyer's decisions.

Throughout, the lawyer accommodates influences well beyond legal doctrine. Doctrine remains a necessary, distinctive part of a lawyer's thought, but is neither sufficient nor always dominant. Instead, it serves as one among many ‘topics’ which surface regularly in a lawyer's handling of decisions. Other topics include narrative, emotion, relational realities, power, interests and resources. These topics comprise internal and external influences and engage both conceptual and affective dimensions. The lawyer's ability to integrate these influences, and to act on them within practical constraints, constitutes a distinctive capacity, for which I use the term ‘practical judgment.’

I offer three caveats. First, practical judgment here references decisions made by lawyers in regular practice, whether through case appraisal, counseling, planning, negotiation or advocacy. It refers neither to adjudication nor to legislation. Second, I do not ask, ‘how should lawyers think?‘ I ask a more descriptive question: ‘How do lawyers think?‘ I may suggest what lawyers should do, but will not advance my suggestion as conclusive. Finally, this descriptive effort is neither empirical nor scientific, but propositional and humanistic. It draws on historical and conceptual sources to suggest both an agenda for research and a language for explaining the methods of lawyering.

Practical judgment in the hands of lawyers requires a unique mixture of conceptual skill and personal, even subjective, rigor. It requires responsiveness to non-legal, and often non-conceptual, realities and experiences. Practical judgment engages not only the lawyer's intellect, but also his or her emotions, values and social capacities. Indeed, it occurs in a relational context and emerges from joint decision-making. Finally, it requires a degree of personal and moral discipline and care that develops only slowly and with experience. What blossoms in law school ripens only later, after regular encounters with problems for which legal doctrine offers only partial, incomplete answers.