Introduction

From the very first day of your law school experience, professors in every course will challenge you daily with stern admonitions that you are expected to learn how to “think like a lawyer.” You will expend considerable amounts of time, effort, and energy throughout the next several years of your law career, both in the classroom and in personal study, trying to acquire this skill. Every professor, as well as every lawyer and judge that you will likely encounter, is quite capable of recognizing this unique skill when it is demonstrated on a written examination answer, or in a written brief or appellate opinion, or when they hear it applied orally in a classroom response or before a court. However, few lawyers are actually able to articulate a precise definition of this very elusive concept, or to describe a set of specific criteria that can be applied as a “test” in determining whether any given argument is suitably “lawyer-like.” Indeed, for many attorneys the answer to this question is frequently summarized in words similar to those penned by Justice Stevens who, writing a concurring opinion in Jacobellis v. Ohio, 378 U.S. 184, 197 (1964), responded to the Supreme Court's refusal to precisely define what he characterized as an “indefinable” term such as “pornography” by explaining that: “perhaps I could never succeed in intelligibly doing so. But I know it when I see it.

Unfortunately, responses like this do not inspire great confidence for the beginning law student as they seek to actually master this important skill, nor do they even offer much practical advice as to just how the process of “thinking like a lawyer” actually works. The purpose of this Tutorial is to provide students with a series of exercises that offer at least some tangible set of criteria that can be used to aid in the student’s development of this unique, but quite necessary, skill.

TYPES OF LEGAL REASONING

This Tutorial Exercise addresses three different types of "reasoning" processes that are commonly utilized in critical legal analysis. Although legal analyses may also involve many other legitimate "reasoning" and thought processes, the ones discussed in this Tutorial are fairly representative of the various different ways in which legal arguments are typically structured. Specifically, these three types of reasoning are:

1. Deductive Reasoning
2.
Inductive Reasoning
3.
Reasoning by Analogy