Lawyering in the State of Nature: Instinct and Automaticity in Legal Problem Solving

This article explains why lawyers do not think or talk like other people, how they got this way, and why this is both a good thing and a bad thing. I have watched hundreds of law students leave their old ways of thinking and talking behind and begin to sound like lawyers. One marker of the progress from lay person to lawyer is the emergence of the ability to tell a coherent fact and law story about a new legal problem. I have sometimes celebrated this professional progress and sometimes lamented the loss of common sense, but my lawyerly analysis could not explain that process or tell me how to influence it. This Article has four sections. Part I discusses recent attention to legal problem solving at the earliest stages of a case, before there has been the creation of a binding factual record and presents Newell and Simon\u27s human problem solving model-solving as a search through a problem space using domain-specific knowledge and search techniques! 7 Part II discusses the application of the model as an analytic framework for study of lawyerly problem solving. Part III presents two results of the study: the expert/novice distinctions observed in other domains are also found in the law, and the solvers consistently used one of two general ways of thinking about the problem, one law oriented and one fact oriented. Part IV argues that although we can set up the conditions in which law students can develop their lawyerly thinking, we cannot directly teach them to think like lawyers. Each of us must take responsibility for the version of lawyerly thinking that we have developed for ourselves