Two Ideas, One Mind: The Challenge of Legal Thinking

-- By ChristopherBuerger - 09 Feb 2008 *Still in Rough Draft Form*

Introduction

Most of us grew up during a time in which society's views on intelligence were completely redefined. Standardized tests were called into question, and and researchers (perhaps most notably: Howard Gardner]]) started to speak of different kinds of intelligence. But as budding lawyers, what kind of intelligence are we seeking? The different messages we are receiving as first year law students point me to a specific test for intelligence that, if rudimentary, is perhaps the most useful to think of as we approach both specific legal problems as well as ideas of how to shape our future careers. This "test" was thought of not by psychologists, but a novelist, and it is not part of the modern redefinition of cognitive ability, but was rather asserted over 70 years ago. It was F. Scott Fitzgerald who is credited with saying, "The test of a first-rate intelligence is the ability to hold two opposed ideas in the mind at the same time, and still retain the ability to function." Fitzgerald's idea of intelligence is a major part of effective lawyering in the short term and also in the long term.

Section I- The importance of holding opposing ideas for effective lawyering in the short term

Subsection A: Good arguments, Legal Realism, and the malleability of law

Good lawyers supposedly make good arguments. These arguments become even more critical when we take into account the malleability of the court. Arguments of predisposition of jurors aside, we have come to point in legal studies, that nearly everyone admits the impossibility for objective and universally agreed upon legal decisions. Whether it is Holmes saying, “You can give any conclusion a logical form” or Frank reminding us that “the facts [in a trial]… are not objective” or even Cohen decrying the circular logic that courts use in defining terms like value or due process, it seems that courts will decide as they wish. The most effective lawyer in these instances will be able to convince the court that they “wish” to decide in his or her favor.

Subsection B: The importance of understanding opposing arguments

Building a strong argument is not enough. Lawyers must work beyond the ideas of their client and the arguments that strengthen their position. They must take into account the other side. They must imagine what the skeptical judge or juror is thinking and anticipate what the opposing counsel will contend. This imagination, however, must go beyond the point of anticipation. The effective lawyer cannot simply make an argument that is persuasive to a party that does not wish to be persuaded. The effective lawyer will see not just what, but why. Why does the judge hold that view? What is the motivation for it? The best lawyer holds not just the client’s ideas, but must simultaneous hold and share the view of anyone that might not yet be convinced. And doing so, the lawyer must still be able to properly function.

Section II- The importance of holding opposing ideas for effective lawyering in the long term

The above point may be the clearest way a lawyer can utilize Fitzgerald’s idea of intelligence, but it is not the most interesting or the most important way. First, we must recognize that lawyers have a greater responsibility than winning cases. Lawyers have a unique ability to shape the world with their words, to move social forces in different directions. And if it’s true, as Holmes suggests when he quotes Hegel, that it is the “opinion,” and not the “appetite,” that must be satisfied, then a lawyer’s success cannot be measured by salary or litigation wins or contracts formed. Rather, success will be measured by the impact a lawyer has in shaping the world, on shifting policy, social beliefs, and individual actions.

Subsection A: Trying to understand, keeping an open mind

The lawyer's ability to function with two opposed ideas in his or her head simultaneously is most critical when dealing with these measures of success. Any lawyer working for a cause will meet opposition. Rather than immediately attempt to defeat the opposition at any cost, a good lawyer will ask why the opposition exists. Is the opposite view simply fueled by greed or bigotry? Or, is there another side represented by otherwise reasonable individuals who simply ascribe to a different worldview? In the latter situation, a lawyer must think of the source for this distinct vision of the world. What are the facts that someone else has seen, the experiences that someone else brings to the table? A lawyer working for change must simultaneously see the positives that he or she imagines and the negatives that his or her opponents fear.

This is in no way to suggest that a lawyer should be a moderate on all issues. It is simply to emphasize that when lawyers do take a strong stand that they understand why they are doing so, and why someone else in their position might not. Good lawyers will understand the conditions that they base their position off, the conditions that are still unknown, and the possible change in conditions that could shift their views. This kind of freethinking and mental flexibility is only possible when one is willing not just to entertain, but completely hold an opposite viewpoint within their mind.

Subsection B: Bringing opponents together: The work of a lawyer

The most important way that this kind of thinking can help a lawyer is by aiding in his or her attempt to bring people together. As first year students, we have already heard time and time again that when a case goes to litigation, the lawyers have, in some sense, already lost. A good lawyer will not just find opposing ideas and knock them down. Surely this is a useful skill to command. A more useful one, however, is to find opposing parties and bring them together in a peaceful way, to take two opposing ideas, hold them in one's mind, and reconcile them in a way such that the compromise could be agreeable to two feuding sides. The greatest hope I have for the practice of law is that it holds a promise, a promise that there is still a chance for human beings to resolve their disagreements civilly and peacefully without resorting to show of brute force.

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If you ever get a chance, I highly, highly recommend you read Stephen Jay Gould's Mismeasure of a Man. I'm not sure how directly it relates to your paper, and in any case you won't have time to read it before Thursday. But if you ever have some free time, it's a great book on intelligence, and I think you'd like it.