Dear Student,

Welcome to The Law School Playbook!  I’m Halle Hara, a professor of academic success and personal skills coach to law students and attorneys.  I’m glad you’re here!  Today we will begin our discussion of legal analysis.  We have all heard it time and time again:  the purpose of law school is to train you to “think law a lawyer.”  As the infamous Professor Kingsfield told his students in the 1973 film The Paper Chase, you come to law school “with a skull full a mush, and you leave thinking like a lawyer.”  But what does that mean exactly?  Do lawyers really think different than other people?  What does it mean to “think like a lawyer”?  And, for that matter, what is legal reasoning?

I recently posed these questions to a room full of upper-level law students, and the response was silence and blank stares.  This is not a total surprise because even legal scholars can’t agree on the answers.  It got me thinking about the skill of “thinking like a lawyer” or engaging in legal analysis, and what exactly those phrases mean.  In this series of letters, I will explain to you what I believe “thinking like a lawyer” and “engaging in legal analysis” means and how you can further develop these skills for law school and practice.

We are going to begin our discussion with identifying the rule, which is, of course, the starting point for any type of legal analysis.  Finding the rule may sound easy enough but, more often than not, identifying the relevant rule can be a real challenge.  As you know, some rules are derived from a statute or regulation, and others are derived from case law.  There are many different types of rules that contain all different types of tests.  For example, the rule might be a conjunctive element test:  one which uses the word “and” to require that all elements be satisfied.  In contrast, a disjunctive rule would use the word “or” to indicate that less than all of the elements need to be satisfied.  The rule may contain a number of factors for the court to weigh and balance to determine if the test has been met.  There are rules with exceptions and combination rules.

The clarity of the rule governs which of the two principle types of reasoning you’ll use in law school.  That is, if a rule is clear you’ll use deductive reasoning (or formalism) to determine the outcome.  Deductive reasoning, also called rule-based reasoning, is based on certainty, which is why it is also used in math.  In contrast, inductive reasoning is used when the rule is unclear, incomplete, or there is no rule at all.  Inductive reasoning is based on probability.  It entails predicting an outcome based on data, which is why it is also used in science.  Today our focus is on rule-based reasoning.

Rule-based reasoning is rooted in formal logic.  You may have been taught formal logic in law school, but most law professors don’t identify it as such.  For example, when you apply a rule to a fact pattern on an exam, you are engaging in deductive reasoning using a syllogism.  A syllogism consists of a major premise, a minor premise, and a conclusion.  Perhaps you’re familiar with the classic syllogism that is as follows:

• major premise = all men are mortal

• minor premise = Socrates is a man

• conclusion =  therefore, Socrates is mortal

I’m going to repeat that again in case you missed it:

• major premise = all men are mortal

• minor premise = Socrates is a man

• conclusion =  therefore, Socrates is mortal

So how do you use a syllogism to solve a legal problem?  The general answer is that rules behave like a major premise, facts are the minor premise, and the conclusion is reached by applying the major premise to the minor premise.  Let’s consider an easy example:

• major premise = Ohio law prohibits the sale of alcohol to anyone under the age of 21

• minor premise = Liquor Paradise, an Ohio store, sold alcohol to a 17-year-old girl

• conclusion = therefore, Liquor Paradise is guilty of violating Ohio law

This is a very straightforward case. The type of logic demonstrated here is useful on issue-spotting law school exams.You have a clear rule (a truth), that you are applying to facts, to reach a conclusion.

We can also see this in the context of a jury trial, for instance.  The jury cannot change the major premise (the instruction or truth) but is charged with finding the minor premise (the facts), leading to an ultimate conclusion (the verdict).

Let’s consider another example from Professor Wilson R. Huhn, author of The Five Types of Legal Argument.  In a 2013 presentation, Professor Huhn started with a major premise of murder, which he defined as the purposeful killing of another human being and without justification or excuse.  Professor Huhn then gave a minor premise (facts) that involved a burglar who forces his way into a home, finds the resident sleeping in the living room, and then shoots the resident dead.  Applying the minor premise to the major premise, Professor Huhn concludes that the burglar would be guilty of murder.

Professor Huhn then changes the facts to demonstrate the not-so-easy case using deductive reasoning.  As the minor premise this time, he has a woman who was abused by her spouse for many years.  The woman shoots and kills her husband after he falls asleep on the coach.  Just prior to falling asleep, however, the man had been drunk, brandishing a gun, and threatening her with harm.  Assuming the same major premise—that any person who purposefully and without justification or excuse causes the death of another human is guilty of murder—can we conclude that the abused woman is guilty?  In short, we don’t know.  What is unclear in this case, Professor Huhn explains, is the law and how it applies to the battered woman.  To understand how the minor premise is impacted by the major premise in this scenario, we would need to know how the terms purposefully, justification, and excuse are used.

Thus, when the law is unclear or unsettled, deductive reasoning is insufficient for resolving the problem.  In that case, the court and counsel must resort to another method, such as inductive reasoning.  We will discuss that type of reasoning in the next episode.

Thanks for listening.  If would you like to read this episode, get suggestions for further reading, or to request individual coaching with me, please visit my website at www.lawschoolplaybook.com.

As always, do your best, and I’ll be rooting for you!

References and Further Reading

Ruggero J. Aldisert, Logic for Lawyers:  A Guide to Clear Legal Thinking 28–29 (3d ed. 1997).

Steven J. Burton, An Introduction to Law and Legal Reasoning 43–58 (3d ed. 2007).

Christine Coughlin, et al., A Lawyer Writes: A Practical Guide to Legal Analysis 131–34 (2d ed. 2013).

Wilson R. Huhn, Presentation Five:  The Stages of Legal Reasoning (2013) https://www.google.com/search?ei=9in8XPzdMY_ctQWO3ZnoDg&q=huhn+presentation+5+2013+rule-based+reasoning&oq=huhn+presentation+5+2013+rule-based+reasoning&gs_l=psy-ab.3...62222.67348..67857...0.0..0.229.2368.17j6j1......0....1..gws-wiz._zPF3yNRRX0.

Wilson R. Huhn, The Five Types of Legal Argument (2014).

Barbara Anne Kalinowski, Logic Ab Initio, A Functional Approach to Improving Law Students' Critical Thinking Skills, 22 Legal Writing 109 (2018).

The Paper Chase (Twentieth Century Fox 1973).

Kenneth J. Vandevelde, Thinking Like a Lawyer:  An Introduction to Legal Reasoning 93–115 (2d ed. 2011).