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How to think like a lawyer in three easy steps

Posted by Andrew Segal | May 07, 2018 | 0 Comments

 Law schools spend three years teaching law students how to think like a lawyer.

Here's how to do it in three steps:
First, understand what a true fact is and know how to dispute its meaning. 
To a lawyer, a fact is something that is not in dispute. When something is accepted as a fact, lawyers will argue about the meaning or conclusions to be drawn from the fact.
So, step one is to able to dispute what a fact means.
When something is a fact, lawyers will often challenge the interpretation or conclusion drawn from the fact.
Let me explain with an example. Here are our facts:
Joe is arrested for drunk driving. His eyes are red and bloodshot.
The prosecutor argues red bloodshot eyes are proof Joe was drinking.
The defense argues red eyes are just as consistent with Joe's staying up late and his hay fever; they are not proof that Joe was drinking.
While both lawyers are accepting Joe having bloodshot eyes as a fact they are arguing about the meaning of that fact.
The second step is to recognize something is not really a fact but rather "an issue in dispute.".
When something is in dispute, it is not accepted it is a fact. Instead, it is an issue that is disputed.
Bob is arrested for drunk driving.
The officer testifies Bob had red bloodshot eyes when arrested.
This time Bobs' lawyer has the booking clerk who took Bob's photograph come to court and testify that, at the time of Bob's booking, Bob did not have red bloodshot eyes and Bob's booking photograph is an accurate depiction of Bob at booking.
Bob's lawyer also produces Bob's friend Ned testifies he was with Bob shortly before Bob was arrested Bob's eyes were not red or bloodshot.
Here, Bob's lawyer is attacking whether something is a fact; in this case, he is arguing that Bob's eyes were not red and bloodshot.
So, step two: dispute whether something is really a fact. If it is not a fact it is an issue that is in dispute.
The third step is to argue about the interpretation and meaning of rules.
 Lawyers argue about how to interpret rules and what those rules mean.
 Here's a classic example:
Say we have a rule:  "NO VEHICLES IN THE PARK"
 A wheelchair-bound man is arrested for violating this rule because he went into the park in his wheelchair.
The States lawyer argues:
"A wheelchair is a vehicle. While it's unfortunate this man violated the law, we must abide by and follow our laws. "
The defense lawyer argues:
"The legislature never meant to prohibit people in wheelchairs from having access to our parks; Clearly, that was not their intent, so they did not mean the definition of " vehicle" to include a wheelchair. My client should be found not guilty."
What the lawyers are doing here is similar to what lawyers do in arguing about facts and issues.
The state's lawyer is arguing that a wheelchair being a vehicle is a fact. In contrast, the defense lawyer is not accepting the prosecutor's assertion that a wheelchair is a "vehicle." He's arguing that this under the law, the wheelchair should not be defined as a "vehicle."
To a layman's ears, this may seem strange but lawyers do this kind of thing all the time.
For example, you might think "a horse is a horse of course of course" but under Alabama, law horse can be considered a vehicle. So if a drunken cowboy rides his horse down Main Street he can be convicted of drunk driving. Now at some point in time lawyer argued that you ride a horse and don't drive it and that a horse is a horse and not a vehicle. But Alabama courts have decided otherwise.
The point is that to think like a lawyer you need to learn to challenge both the interpretation to be drawn by that are accepted as facts, you need to be able to dispute that which is not accepted the fact and you need to learn to challenge the definitions, meetings, and interpretation of laws.
A lot of people, including some lawyers, don't recognize these steps outline the way lawyers think about most things. If you step back you'll see that some version of this is the thought process taking place in almost all legal cases.
Like anything, more you practice the better you get at it.
This the essence of what lawyers do.

About the Author

Andrew Segal

Andrew Segal is a former judge and prosecutor who now represents the accused as a criminal defense attorney in Huntsville, Alabama, area courts. Andrew graduated cum laude from Bowdoin College in Brunswick, Maine, in 1982. and Washington College of Law at American University in 1988.


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