Two Ideas, One Mind: The Challenge of Legal Thinking

-- By ChristopherBuerger - 09 Feb 2008

Introduction

Most of us grew up during a time when intelligence was completely redefined. Standardized tests were questioned, and researchers spoke of different "kinds" of intelligence. But as budding lawyers, what kind of intelligence do we seek? The different messages we are receiving point me to a specific measure that, if rudimentary, is especially useful to think about as we approach 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 stated decades ago. F. Scott Fitzgerald 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 plays a major part of effective lawyering not just in the short term, but in the long term as well.

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 make good arguments. These arguments become especially critical when we accept the malleability of the court. Predispositions of jurors aside, we have come to a point in legal studies where nearly everyone admits the impossibility for objective or universally agreed upon legal doctrines. 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, 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 will see not just the "what" of the opposing ideas, but also the "why." Why does the judge hold that view? What is the motivation for it? What are the assumptions he is basing it on? Which assumptions is he willing to change and which ones are too strongly ingrained. The best lawyer holds not just the client’s ideas, but simultaneously holds and shares the view those not yet be convinced.

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, lawyers have a greater responsibility than simply winning cases. They have a unique ability to shape the world with words, to move social forces. 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. Rather, success is 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 is most critical when dealing with these measures of success. Any lawyer working for a cause will meet opposition. Rather than immediately 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? In the latter situation, a lawyer must imagine the source for this distinct vision of the world. What are the facts that someone else sees, the experiences that they bring to the table? A lawyer working for change must simultaneously see the positives of a goal mirrored by the negatives that his or her opponents fear.

This is in no way to suggest that a lawyer should be a moderate on all or even any issues. It is simply to emphasize that when lawyers do take a strong stand, they need to 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 or contested, 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 alongside their own.

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 many times 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 a compromise can exist. 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 a show of brute force. To accomplish this hope, it is imperative that a lawyer understand not one, but at least two opposite ideas in every conflict.

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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.