The following article is by Janet Stanton, Partner, Adam Smith, Esq. LLC.
Our industry is awash with really smart people. You kinda have to be to get into and through a top law school. Then, why is there such a paucity of creative thinking in Law Land? After pondering this, I posited that being smart and thinking are distinctly different. Intelligence is innate; thinking, on the other hand, is intentional; an action.
My hypothesis is that the lack of intellectual curiosity in the legal profession at least partly stems from how law schools teach their impressionable, ambitious students. I queried recent and long-ago law grads on this and in the case-law method (which still remains the basis for the first year of law school) there is one-and-only-one correct holding for any given case. Period. Compare that to business school and business itself which live in a world brimming with nuance and gray areas where there can be any number of possible solutions, with countless permutations of benefits and risks. Their challenge is to figure out the optimal “answer” for the particular and current set of circumstances. Entirely different mindset.
That difference has to have a profound effect on the wiring in one’s brain. And the most driven law students with the highest 1L grades, who, by definition were most adroit at pinpointing the single right answer (over & over again) are those most coveted by law firms for their sought-after summer programs; the next important rung in a young lawyer’s career trajectory. As a result, nuance and creativity are effectively leached out of the talent pool, which over generations has led to an industry that is often both sclerotic and smug.
This helps to explain the oft-observed lemming-like behavior in Law Land. In Corporate Land, novel ideas have inherent (if not decisive) appeal; in Law Land novel thinking is viewed almost universally with suspicion. We can’t tell you how many times we’ve heard law firms ask, “who else is doing [whatever modest proposal we’re suggesting]?’ – the inference being – if no other firm is doing it, this firm will most assuredly not even consider it.
Thinking requires effort. As Henry Ford said, “Thinking is hard work. That may be the reason so few engage in it.” (he was right about many things). For example, studies suggest that brain activities account for 20% of the calories utilized by the body. More evidence comes from the lofty world of chess championships… Robert Sapolsky, Stanford professor of neurology and neurosurgery reported that over the course of an intense multi-day tournament, a chess grandmaster could burn up to 6,000 calories a day. Remember, these people are largely sedentary the whole time.
We hate to describe a problem and not at least to try and come up with some kind of redress.
So, what’s to be done? I mean, of course law firms want to hire folks who are both smart and think.
I’d like to suggest that law schools could play a major role in this, but that, I recognize, is a fool’s errand. They seem even more hidebound than the most rigid firm. But indulge me in some wishful thinking (yes!). First off, I’m in no way suggesting that law school is easy – far from it. It takes brains, grit and perseverance. That said, there’s not much room or need for subtlety of thought; certainly not in that formative first year.
Before law schools dive into case law study, wouldn’t the student-brain be stimulated by a mandatory study of Constitutional theories, foundations for our legal system. From the Greeks, Romans & the Dutch. The Enlightenment; Locke & Hume, etc. (Adam Smith, anyone?)
These and other foundational topics are covered but only occasionally and as elective classes or small seminars during the 2nd & 3rd years, often as a professor’s personal pet project; hardly institutionalized – well after when many law firms have made their hiring decisions.
Now – back to the real world…
Unfortunately, there’s no test to measure the ability to think…akin to the I.Q. test. In an email exchange with the esteemed Dr. Larry Richard, guru of lawyer psychology (https://www.lawyerbrain.com/), he posited that when recruiting, law firms should look for candidates who exhibit mindfulness, or “presence,” during interviews. Personally, I have to believe that curiosity and open-mindedness must also play a part in whether or not an individual has a propensity to think; I’d look for candidates that also evince these characteristics.
“Most men would rather die, than think. Many do.”
—Bertrand Russell
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