Legal Thinking
Becoming a proficient legal thinker takes time and effort. At the core of legal thinking is the ability to determine whether or not an individual case is in accordance with a general rule.
To master this analytical skill, law students learn many different sets of rules and study countless individual cases. As the Carnegie report observes, law school provides rapid socialization into the standards of legal thinking:Law schools are impressive educational institutions. In a relatively short period of time, they are able to impart a distinctive habit of thinking that forms the basis for their students' development as legal professionals. (Sullivan et al. 2012, p. 5)
Law schools reach this result, the report continues, primarily through the medium of a single form of teaching: the case-dialogue method.[182] One could say that, for a large part, legal students are trained to be “case solvers”. In my research, I have come across managers without a legal background working in legal environments. One joked about his colleagues in the management team who did have a legal background:
When somebody throws them a case, they will drop everything and instantly start debating about its nuances and consequences. Comes in handy if you want to distract them, but not if you have urgent organizational matters at hand.
The risk of training case solvers is also that they may develop a tendency to react only when a case is presented to them. Seen in this light, it is not surprising that the criticism of in-house counsel is often that they are too reactive, acting only when presented with a problem. The preventive and proactive law movements that have originated in the US and Scandinavia are attempts to structurally counter this tendency and encourage legal professionals to direct their efforts to preventing problems, rather than acting when they have arisen.
Preventive law originated in the US in the 1960s, with professor Louis M. Brown as its founding father. The name “preventive law” draws a parallel with the distinction between curative and preventive medicine and the saying: “an ounce of prevention is worth a pound of cure”. Several Scandinavian scholars and practitioners elaborated on this line of thought from the 1990s onward and founded the Nordic School for Proactive Law.[183] The word proactive, as opposed to preventive, emphasizes that legal professionals should actively identify situations where the law and legal means can be applied usefully at an early stage. Being proactive is vital to effective legal management. Legal prevention can often indeed prevent legal trouble. Of course, not all problems can be avoided, but this line of thought is valuable and deserves greater attention among legal professionals and in legal education.As legal education is based to a large extent on the case-dialogue method, it is interesting to note that cases are usually examples of “bad case” or “worst case scenarios”. Psychology teaches us that frequent exposure to a specific type of examples will change the way a person thinks. When confronted with a certain situation, people will overrate the likelihood of scenarios that are similar to examples to which they have frequently been exposed, compared to other possible scenarios: the so-called “availability bias”. A large part of this happens subconsciously. In reality, legal professionals will know that the chances of a worst case scenario being realized are slim, but their education may have shaped their mind such that they overrate these chances. Traditional legal education might therefore be partially responsible for increasing the risk averseness of legal professionals. Other experiences and training will also have an effect, so it remains to be seen whether legal professionals, especially operating in corporate settings, are truly more risk-averse than other professionals, as is often claimed by business people.[184]
The stereotype of the “legal department as the business prevention department” is more likely to have originated from involving the legal department too late in business initiatives, rather than from the risk averseness of legal professionals. For this late involvement, both the business and the legal departments might be to blame.
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