Legal Analysis and Commentary from Justia

How Mitt Romney Forgot His Legal Thinking at the Hofstra Debate

Lecturing an empty chair at the 2012 Republican National Convention, with an imaginary President Barack Obama seated in that chair, Clint Eastwood was seven minutes into his stuttering, slightly stumbling monologue when he said, as an aside, “See, I never thought it was a good idea for attorneys to be the president, anyway.”

Eastwood’s observation provoked applause by the convention delegates, so he continued: “I think attorneys are so busy—you know they’re always taught to argue everything, and always weigh everything, weigh both sides.  They are always devil’s advocating this and bifurcating this and bifurcating that, you know, all that stuff.”

While watching the second presidential debate for 2012 at Hofstra University, I kept thinking about Clint Eastwood’s analysis of how lawyers think, and about the performance of his chosen candidate, Mitt Romney, who is trained as a lawyer.  Indeed, both Obama and Romney were “taught to argue” at Harvard Law School, a fact that seems to have escaped Eastwood and the approving audience at the time. Romney also entered the Harvard School of Business, and received not only a Juris Doctor but also a Masters of Business Administration degree as well.

Eastwood’s analysis caused me to consider how lawyers think, and knowing a number of very successful businesspersons and attorneys, I simply thought about how they operate. But it seemed to me that before reaching any conclusion, I ought to look around to see what others felt about this, only to discover there are two distinct schools of thought within the legal profession about how lawyers think, and it is a subject that has been debated for decades.

For purposes of this discussion, suffice it to say there are those who believe (a) that lawyers do not think any differently than anyone in any other profession, and others who have concluded (b) that lawyers, because of their legal training, possess unique thinking skills. Before turning to my thoughts on the matter, and to the presidential debates, here are summaries of the differing views.

One Position: Legal Thinking Is Merely Critical and Clear Thinking

A decade ago, my Justia co-columnist Michael Dorf, speaking as a law professor (then at Columbia; now at Cornell), wrote an essay for students who are entering law school, to demystify legal thinking.  After Professor Dorf described the Socratic method, which is used extensively in law schools, he explained that he and other professors use this technique for one reason: To teach critical thinking.

Professor Dorf proceeded to explain: “There is no such thing as thinking like a lawyer. There is only clear thinking and confusion.”  He added that while “the law often requires much greater precision than is needed in other spheres of life,” there is, in fact, “nothing different in kind about lawyerly precision that distinguishes it from any other type of clear thinking.”

Finally, it should be noted that Professor Dorf’s view is widely shared, for there are many who join him in believing that the myth that legal thinking is a special type of thinking persists not because there is truly something unique about “legal thinking,” but because it glorifies the legal profession.  I have had others explain to me that this myth is perpetuated by law schools in order to justify the ever-increasing expense that is involved in obtaining a legal education.  In addition, as Professor Dorf wrote, more than the self-interest of the profession is involved because the general public often believes that it is the special skills found in legal thinking that enable lawyers to “displace common sense with legalistic pedantry,” in his words, or in the words of Clint Eastwood, to “devil’s advocate,” and “bifurcate,” and “all that stuff.”

A Second Position:  Legal Thinking Is a Unique Skill In Itself

Others believe that thinking like a lawyer is a unique skill, which law schools provide to their students, and that it is part and parcel of being a lawyer.  For example, law professor Frederick Schauer published his book Thinking Like A Lawyer in 2009, in which he lays out, chapter by chapter, his analysis of the elements of legal thinking.

Professor Schauer acknowledges that lawyers think as others do, but he says that they approach legal problems, because of their training and the nature of the profession, in ways different than those other professions employ.  For example, in a his delightful speech on the subject (archived on YouTube video, if the reader is interested), Professor Schauer noted that lawyers are bound to follow legal precedents (that is, cases that were previously decided), even when the attorney would have decided the precedent-setting case(s) differently himself or herself, because following precedent creates the common law, and gives continuity to the law.  In a similar fashion, lawyers are trained to follow rules, even when the rule at issue is not a rule they would have chosen to follow.

In addition, Professor Schauer noted that lawyers are trained to rely upon established authorities, like Wigmore On Evidence. In short, he explained, legal thinking creates a tolerance for wrong answers, or at least for answers that are wrong as perceived by the lawyer, and yet are accepted by the lawyer because that acceptance furthers the greater good, by establishing the rule of law.  Professor Schauer finds, moreover, that legal thinking is not particularistic.

How Legal Professionals, in Fact, Do Think

Without trying to resolve the decades-old dispute within the academic community regarding legal thinking, I would like to note that law professor Nancy Shultz has explained exactly what it is that lawyers do—or, more precisely, what it is that law schools strive to teach would-be lawyers.

While Professor Shultz notes that a good attorney needs “brains, heart, and courage,” I was interested in her analysis of thinking skills—which, she explains, vary depending on the type of practice a lawyer selects.  She lays these skills out in a nutshell, and I have further condensed and paraphrased her account here:

Lawyers (1) analyze and synthesize principles; organize and present coherent and persuasive lines of reasoning; interview prospective clients; examine witnesses and draft pleadings or interrogatories; exercise judgment and engage in moral reasoning; and develop knowledge of self, and of the premises of the legal and social order; (2) think independently; master and organize complex bodies of data, presenting it in a persuasive manner designed to achieve a particular goal; (3) critically analyze the utility, effectiveness, and social implications of legal doctrine and procedure; integrate non-legal approaches into a legal problem-solving process; and synthesize legal theories, frameworks, and systems; (4) determine goals that a client might choose, and devise strategies for realizing goals. For Professor Shultz, the bottom line for legal thinking “is the ability to learn from experience—from self and from others.”

Yet there is one other factor that is unique to lawyers’ thinking when they are active members of the bar.  It is also a factor that surely has to influence their thinking, if they wish to remain in good standing with the bar.

Active Lawyers Are Officers of the Court and Members of a Profession

Most states, and many cities, require businesses and professions to be licensed.  As the American Bar Association notes, although “doctors, plumbers, electricians, barbers, etc. may sell their time and skill to the public by virtue of their license from the state, the attorney alone has the right to set the judicial machinery in motion in behalf of another and to thus participate as an officer of the court in a judicial proceeding. This right springs from his status as an officer of the court.”

To practice law, not only must the attorney meet the requirements of the bar of the jurisdiction to qualify as a member of the profession, but the courts of that jurisdiction impose special obligations on the attorney, as well.  Every jurisdiction has rules of conduct, which often are based on, or similar to, the ABA Model Rules of Professional Conduct.

If these rules (or their local equivalent) are not part of an active “lawyer’s thinking,” then that lawyer is not going to be practicing law for very long. It should be noted that these rules reach both the lawyer’s “business and personal affairs.”  See generally, for example, The Preamble of the Rules to get a feel for their broad reach.

But these bar rules do not likely influence either Mitt Romney or President Obama, for neither is directly subject to codes of ethics and professional conduct. Romney passed the Michigan Bar Exam; was sworn in on August 3, 1976; and immediately assumed an inactive status with the Michigan Bar.  Obama passed the Illinois Bar in 1991, and was an active member of the Illinois Bar until 2007, when he ran for president, and changed his registration to inactive.  After being elected president, he changed his status with the Illinois Bar to retired. (Obama had to comply with ethics requirements at Harvard Law that were not required when Romney was there; Obama would have taken an ethics bar exam, which Romney was not required to take; plus Obama would have had ethics training requirements during the decade-and-a-half when he was active.)

Clint Eastwood Was Only Partially Correct About Romney

While Clint Eastwood was wrong about Romney not being trained as a lawyer, he was correct in his larger point that Romney thinks like a businessman, not a lawyer. Indeed, there is no evidence whatsoever that Romney thinks like an attorney.  To the contrary, there is clear evidence that he thinks like a businessman.

Frankly, I am with Michael Dorf in finding no real difference in the thinking among professionals, only different knowledge of particular professions.  I surely would not want my very thoughtful internist representing me in court, nor would I go to my clear thinking attorney for my annual physical.  I know several successful businessmen who were once attorneys, although no successful businessmen who have taken up law.  The bottom line: I find no real difference in the analytical, organizational, and rhetorical skills of those I know (or have known) who are in business, versus those I have known in the law—and other professions.

(Ironically, I am currently working on a book on Nixon, and transcribing his infamous secret White House tapes.  In a conversation I listened to last week, Bob Haldeman, Nixon’s Chief of Staff, who was an advertising executive and businessman, is the one who was able to explain to President Nixon, and John Ehrlichman, both attorneys, that the secret taping system was not illegal in the District of Columbia because one party to the recording had given consent.  It was the non-lawyer who had analyzed the situation, and looked up the law.)

Nonetheless, I am convinced that those who have practiced law are better at marshalling arguments, simply because they have done it more than businessmen or those in other professions.  They are also better at seeking confirmation of facts and procuring documentation in support of positions.  While President Obama decided—for whatever reason—to remain largely passive during the first presidential debate in Denver, he was very much a former civil rights lawyer, and law professor, at the Hofstra debate.  Mitt Romney has been on the campaign trail for years, but none of his opponents have been as skilled an attorney as Obama, when he actively engages an opponent, as he did at Hofstra.

As for Clint Eastwood’s concern about having an attorney as president, we’ve had twenty-five: J. Adams, Jefferson, Madison, J.Q. Adams, Jackson, Van Buren, Tyler, Polk, Fillmore, Pierce, Buchanan, Lincoln, Hayes, Arthur, Cleveland, Harrison, McKinley, Taft, Wilson, Coolidge, Roosevelt, Nixon, Ford, Clinton, and Obama.

Actually, I’m more worried about having a Republican businessman in the Oval Office than about having an attorney, and I believe that anyone who’s paying attention should share my view, given the disastrous records of former GOP businessmen in the Oval Office, starting with Herbert Hoover and ending most recently with George W. Bush.

John DeanJohn W. Dean, a Justia columnist, is a former counsel to the president.
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  • Jane Mayer

    In most professions, it is the information they learned that guides their performance in all things they do. In the legal profession, they do learn a smattering of law so that they can read and understand the laws as they change and to that end they have legal briefs and search engines that help them find appropriate previous legal opinions. But like other professions, if you don’t work as a lawyer, you do not think as a lawyer. He worked as a CEO of a vulture capital company that lost 1/3 of its investments through bankruptcy but still made a killing off the pension funds and fostering the company through the bankruptcy with large tax deductions for their work. Now maybe some of those should not have failed… and some of them should not have succeeded. He was also governor for four years and ran the olympics for one. He has been singularly unemployed for much of the last decade but has instead spent his time JOB HUNTING and using his Bain Capital wealth to buy into a Ponzi scheme for a million dollars in stock… which I HOPE he and Tag lost at least so long as the 600Billion is still nowhere to be found… even if they are looking in the Caymans.
    But what is disturbing is that Bain performance has supposedly improved since someone else took over the reins. That alone says Mr. Romney is hardly the learned businessman he claims to be. Considering that he has had considerable negative attention from Massachusetts, from his coworkers in the Olympics, and from the victims of the Vulture capitalist’s forte, it seems that everyone has a bone to pick with his performance. All for one… One for NONE. He will do and say ANYTHING TO GET ELECTED BUT AFTER THAT IT SEEMS ACCORDING TO RYAN THAT HE IS GOING TO IMMEDIATELY GIVE A 20% TAX CUT TO THE 1% AND WAIT TO SEE IF WE CAN AFFORD TO GIVE ONE TO THE MIDDLE CLASS. The bean counters have arleady said we can’t do both and they are adding to that with the thought that if we give them another reduction, we will have to increase taxes on the middle class… and then I hear Mr. Romney is also planning to cut taxes on investments to near nothing. Then he won’t have to pay any of his income to the government. We are suffering from outsourcing and giving them tax deductions to move overseas, but we are not getting the wealth brought back to the US because when they do so, it is taxed. We should not be letting them amass fortunes on foreign soil while we are heading down the rabbit hole. We must change the laws. And it is imperative that we do NOT give Mr. Romney the job. Or we will never get enough money to support the government before we default on our committments. But what does he care. Perhaps he should just go LIVE on the Cayman Islands… Oh, but I forgot, they get hit by terrible storms every year.

  • Jon van Horne

    The Fall 2012 issue of the Harvard Law Bulletin has personal portraits of both Romney and Obama based on interviews with classmates, which support these conclusions about the two men. Romney was more into the B School world than HLS. Obama was, as President of the Law Review, quintessentially an attorney even then.

  • Malarkey Silverman

    He also forgot not to ask a question in cross examination to which you don’t know the answer, and to be sure you can commit a witness to their statement before you impeach them on it.

  • tommy

    If this is an example of thinking like a lawyer I am glad Romney is not doing that.

  • http://www.facebook.com/mitchell.wachtel Mitchell Wachtel

    Mostly, it would seem lawyers think about different things than other persons do. Apart from criminal law, a small part of the profession, the rest is quite boring & incomprehensible to non-lawyers.

  • Shannon Jacobs

    My outsiders perspective is that Romney actually did act as an attorney in the first presidential debate, effectively distancing himself from his client. He knew that his client was going to be accused of extremism, and he did a highly credible job of evading the charges. That doesn’t excuse President Obama for being caught flat-footed, but I wonder if there was more to that story than has so far met the eye. Perhaps he was forced to spend the previous night working on his day job? That’s one of the problems with being president in difficult times.

    Having said that, I still don’t think Romney can be dismissed as the fool who relied on himself as his lawyer. The young men know the rules, but Romney is an old enough man to know the exceptions…

    The current threat to democracy in America is mostly the rampant Romnesia among so many voters. Whatever positions Romney is taking now, he has opposed them in the past.

  • Mary E. Black

    I wasn’t aware that the president along with Romney pasted the bar exams in two separate states. WOW!

 

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