If You Speak Like a Lawyer, Do You Think Like One?
Law school may be better at teaching us to talk like lawyers than it is at the loftier, near-mythical aspiration of teaching us to think like lawyers.
November 14, 2019 at 11:38 AM
5 minute read
I am a millennial woman and a law student, so it should surprise no one that the lines of the movie "Legally Blonde" are permanently seared into my brain. In her Harvard Law admissions video, Elle Woods enthusiastically boasts that she is comfortable using legal jargon in everyday life. "I object!" she yells to a catcaller.
This particular scene popped into my head recently as I sat in my Evidence class taking notes on the Sixth Amendment's Confrontation Clause, as one does at Michigan Law School. The professor was discussing the U.S. Supreme Court's ruling that a witness's "testimonial" statements against a criminal defendant were inadmissible absent an opportunity for the defendant to cross-examine that witness.
Now, you may wonder how I made the connection from the Confrontation Clause to "Legally Blonde." The neural firings of my brain at 9 a.m. on a Monday can hardly be explained, but there was some link: My professor lamented the tendency for courts to "get caught up in catchphrases," as some overly relied on the word "testimonial" in Confrontation Clause cases when that word was already a shorthand for the court's fuller reasoning. To me, the "jargon" that Elle Woods viewed as a hallmark of a lawyerly disposition does not differ much from this obsession with "catchphrases."
Reflecting on that (outside of class, where I could give my full attention to the profundity of "Legally Blonde"), I wondered is law school better at teaching us to talk like lawyers than it is at the loftier, near-mythical aspiration of teaching us to think like lawyers?
I am far from the first person to comment on the technical nature of language in the law. "Legalese" is literally a word included in the Merriam-Webster Dictionary, after all. Once noticed, though, the jargon and catchphrases and jargon-filled catchphrases become painfully impossible to ignore. My law review note topic is related to the "true threat" doctrine of First Amendment law, and I recently found myself writing paragraphs disparaging the phrase "true threat" as borderline oxymoronic. I am constantly surprised at the ease with which phrases such as "substantive analysis" and "assumption of risk" and "requisite intent" come out of my mouth. Don't even get me started on the Latin.
The structure of doctrinal courses and exams certainly lends itself to "talking like a lawyer." The outlines we agonize over are specifically designed to record the most salient snippets of each case or line of cases, wrapping up complicated ideas and nuanced fact patterns into a few words that can be found with a quick Control+F search during a timed exam. The best way to show you've spotted an issue? Throw out a catchphrase.
The question is how often those words are used in a genuinely meaningful way. Often, when I'm writing something—whether it's a legal memo, part of my law review note, or this very column—I hear echoes of a journalism professor I had as an undergrad heckling me to "write like you talk." But what if the way you talk is sometimes as convoluted and jargon-filled as the typical legal brief, indecipherable by a nonlawyer?
That's not to say this way of talking is inherently bad, or even particularly unique. Every job has its respective jargon. I can only imagine the seemingly nonsensical sentences that I would hear if I were to call up one of my friends in finance or engineering or medicine and ask them to tell me what they do every day. I also think back to the postgame press conferences I sat in on during my sports reporting days, where I would transcribe "coach-speak," usually something mundane about "grit" or "preparation" or "execution," concluding with "our guys did good today" or "we need to do better."
Plus, being able to quickly comprehend and condense a piece of writing is crucial in the law, as well as many other contexts. But the irony is that the effort to reduce complex concepts into catchphrases might weaken legal analysis, as my Evidence professor pointed out in the Confrontation Clause example. Or take a look at the criticism surrounding the Equal Protection Clause "tiers of scrutiny," which are so clean and clear when written on a whiteboard in Con Law but are riddled with qualifiers and unanswered questions on closer examination.
Not to mention that lapsing into lawyer-speak will not earn lawyers many friends among nonlawyers. Since starting law school, I've noticed that the fastest way to clear a room at a family gathering is to start talking to my father—also a lawyer—about what I learned in class that week.
I can't say for sure whether I "think like a lawyer," but put an issue-spotter in front of me and I promise that I can talk like one. And for better or worse, I'm comfortable doing so in everyday life. As usual, Elle Woods was spot-on.
Renee Griffin is a second-year student at the University of Michigan Law School.
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