As a Law Professor, Why I Won’t Answer Your Question

During orientation for first year law students at my school, I held a lunch session to present an overview of my whole course. At the end, I asked if there were questions. I added the warning that it would be the last time I answered any.

“Why won’t you answer questions?” asked a student, perhaps already exasperated at the overwhelming amount of information and cultural norms of her new profession. 

She deserves a good response. As a teacher, I serve her — and I try never to forget that.

I explained that I was exaggerating. The stereotype of law professors, from movies such as The Paper Chase, already dated when I attended law school, is that they are chosen for their curmudgeonliness. 

A failure to engage students would make any would-be teacher downright ineffective, at least in the context of contemporary American expectations. As an aside to myself, I have to remember that I cannot attempt to be funny, such as by suggesting I won’t answer questions, because, as my wife tells me often, I used to be funny. But now I have held leadership roles and possess fancy titles. That means I am taken more seriously than I realize.

Oh, and I’m also older; as one student pointed out earlier that day, I’m the age of his father. I did not deliver a snarky reply to his disclosure. Children can tease parents, but parents cannot poke fun at children without that hint of scolding however humorous they wish to be.

For the student who was earnest — her tone of voice indicated she was still more enthusiastic than frustrated — I offered an analogy. That itself is an important pedagogical point. Much of legal reasoning proceeds by analogy. The ability to make appropriate comparisons is crucial to following, or distinguishing, precedent in a common law system. 

Pattern recognition is the great strength of the human brain. Lawyers are able to “spot the issue” within a mass of data, relevant and not; the best lawyers then make a more favorable arrangement from the pieces they have been given. 

Here is my analogy. There is nothing better for a teacher than to be a student. I have taken up running. In 18 months, I have entered and completed 41 races of half marathon length (13.1 miles) or longer. That should not impress anyone. My personal record (PR) is 2:24 at this distance, and only 10:03 per mile in shorter events. My relative finish is typically at the top of the bottom quarter, maybe third, of the total field.

To improve, I work out with a trainer. She came highly recommended. 

She is fast. I looked up her performance. Her PR in the half marathon is more than one hour faster than mine. Even a few minutes is a vast difference.

When I meet my trainer at the track, I sometimes think to myself, “You know, I’m paying quite a bit of money for this. Maybe you should run, instead of me.”

As soon as I told that to the students, they understood. They laughed! 

I wanted them to make the point explicitly though. 

One was up for it. He raised his hand and said I would receive no benefit from watching my trainer run.

Saying that out loud is not insignificant. My specific first-year course, which I love, aware that many lawyers would say the opposite, is Civil Procedure. It’s essentially how a lawsuit works.

I teach people how to sue people. They will be playing a game with real stakes. It is adversarial. I want them to win.

Some of us who are honored to serve as law professors believe, as I do, that we are developing in our students a set of skills. We are not imparting doctrine to be memorized. The goal is for them to practice law. It is not for them to theorize law.

If that is the case, then I am like the trainer, my students like me as the new runners plodding along. To become better, we have to participate. No amount of observation will equal our own exertion. Dedication ought to become intensity.

But as a new runner — worse, someone who was sedentary and a geek — I have to move as I have never done before. I need my trainer to demonstrate some of the activities that are good for my core. She has had to show me repeatedly, for example, how to skip. That action just wasn’t part of my childhood.

There are equivalents. I in turn have to skip a bit. A few yards should suffice. Skipping a quarter-mile lap would be excessive.

The reason to describe in detail all of this is to be deliberate. Setting forth the goal of each class is a prerequisite to achieving it. My desire is to encourage my students to run for themselves.

My trainer is good at what she does, both the running and the teaching, which are distinct. Likewise, I am told I am good at lecturing, and I am paid from time to time to do it. But lecturing and teaching are not the same. Students enjoy my lectures. My estimation is that they do not learn from them.

Many if not most people starting their legal education, and laypeople who retain a lawyer, misunderstand the nature of legal practice. They assume, mistakenly, that it consists of knowing and then reciting a set of black-and-white rules that produce correspondingly certain results. 

Of course, that is not to deny some situations are simple. They are out there. You do not need to enroll in law school to know that there must be a law, even if you cannot articulate it exactly, that prohibits me from stabbing a stranger to death on the beach. Nor do you hire an expert to ascertain that. Thus by and large in law school we spend hardly any time on what is clear. It isn’t worthwhile.

There is much ambiguity, complexity, uncertainty, and change in the law — as well as the facts of any particular matter. You require a lawyer when the law is contradictory: the North says one thing, the South another thing.

Thus the skills of interpretation and application are much more significant for any advocate than the ability to repeat back a statute or an opinion. There may be more than one optimal outcome. Or there might be none at all.

Yet until law school, almost all of my students have been directed otherwise. Their educational career has rewarded them, whatever the prestige of the institution or the particulars of their undergraduate major, for conformity. As if by design, the process has stamped out independent, critical thinking. (A very few come from creative backgrounds. For them, the challenge is to be analytic rather than expressive.)

Counteracting standardization is the purpose of another technique I use, not uniquely. As much as possible, I assign students to argue for the opposite of whatever it is they happen to believe. 

That reversal of roles opens their mind. The more resistant they are to try this intellectual conditioning, the more beneficial it is for them to do so. 

It compels re-consideration of rhetoric they have accepted, including literally as gospel. It makes them more effective for their true cause, exposing weaknesses to their position. They perceive that abstract, formal principles can be invoked by the other side as easily as by their side. 

I concluded my introduction as I always do. If I perform my job, I have no doubt that my students who pursue the specialties I have instructed them in will surpass me soon enough. My superiority is based on a head start. My aspiration for them is their individual excellence.

As I prepare for my first marathon, I listen to my trainer. The next step is to do what she says.

Postscript. Legal education also relies on careful reading. Based on past experience, I would bet some have glanced at the headline to this essay and concluded, “what a blankety-blank that pompous professor is, who won’t answer questions from students paying his salary.” Anyone who has made it to the PS would appreciate that I answer questions as appropriate. To complete the analogy, each answer to a question is a missed opportunity to run farther and faster.

This article originally appeared at The Huffington Post.