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Unpublished Paper
The American Law School and Nine Elements of “Thinking Like a Lawyer”
(2015)
  • David Barnhizer
Abstract
The idea of “thinking like a lawyer” represents a form that combines strategic analysis, assessment and action. At this point my analysis takes an unusual step and seeks to enhance our understanding through use of a seemingly “exotic” framework. In A Book of Five Rings, Miyamoto Musashi describes nine points a strategist must master. I have long thought these points represent the true meaning and composition of what it means when we say “thinking like a lawyer” and am offering them here as a focusing device. Musashi’s nine elements are: 1). Do not think dishonestly; 2). Become acquainted with every art; 3). Know the ways of all professions; 4). Distinguish between gain and loss in worldly transactions; 5). Develop intuitive judgment and understanding for everything; 6). The Way is in Training; 7). Perceive those things which cannot be seen; 8). Pay attention even to trifles; 9). Do nothing that is of no use. These nine elements are useful as the foundation of an integrated system reflecting the lawyer's approach to knowledge, awareness, and action. They represent the range of knowledge a lawyer needs and give meaning to the concept of “thinking like a lawyer” as not simply a technique or method but a quality that includes substance and knowledge. They offer a template for much of the knowledge and technique that we ought to be teaching in law schools. Nor is this knowledge limited to external information or hard data but includes extensive understanding of human nature and self. This strategic knowledge is gained by increasing the quality, nature and complexity of the information being processed by law students and lawyers. The elements involved in thinking like a lawyer include not only the acquisition of information but the ability to recognize and discriminate among pieces of information, set priorities about a client’s goals, discern the significance and utility of information, identify the implications of knowledge and action essential to achieve the desired goals, and learning how to take action of a kind that represents the increased likelihood of achieving the desired goals.
Publication Date
2015
Citation Information
David Barnhizer. "The American Law School and Nine Elements of “Thinking Like a Lawyer”" (2015)
Available at: http://works.bepress.com/david_barnhizer/96/