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The Art of Lawyering

-- By SarahChan - 17 Feb 2025

I asked Professor Moglen “What is your relationship with music?” He responded: for class, music is part of my performance.

Law School and its Obsession with Speech

Moglen’s rationale for introducing music into the classroom is more straightforward than I expected: to break from the traditional structure of legal education.

Law school conditions students to prioritize performance over presence. There is a hyper-fixation on what one says and how one says it. While the statement “No one remembers a bad cold call” is debatable, it holds more truth when framed as people are too absorbed in themselves to concentrate on others. This is why students dwell more on their own performance and perceived failures.

I am equally guilty. During a classmate's cold call, my thoughts are: What would I have answered? Did I grasp this week’s material? How can I anticipate the next question and craft a satisfactory response? My attention is fractured by a subconscious preoccupation with the self.

This preoccupation spills into legal practice. It makes coffee chats easy. A single question is enough to prompt a long-winded response. These moments suggest that many lawyers are not simply answering but performing—they are filling the space with words out of habit. Similarly, Supreme Court justices repeat the same idea for pages. Every argument is clarified, recast, and expanded to preempt objections. Opinions are more about signaling intellectual rigor, thoroughness, and control over the narrative than effective, truthful communication. The result is often a dense and sprawling text where underlying normative concerns are buried by layers of rationalization.

Picasso and the Bad Man

People miss the obvious by taking what they see at face value. Picasso was great not because he saw things others did not. He saw what everyone else did—just differently. His genius was in disrupting perception. Cubism deconstructs reality by fracturing perspective. This technique compels the viewer to consider what is “true.” I think I see a face, but is it really a face? Or is it simply how I have been taught to recognize one?

Holmes takes a similar position: knowledge of the law requires looking at it as a bad man would. Lawyers are trained to speak, not to listen—but the bad man would listen first. Apathetic toward moral justifications, abstract principles, or rhetorical flourish, the bad man cares about one thing: what would happen if I do X? What are the practical consequences of my action? He studies law as a prediction system by identifying what is vague and where the loopholes are. His focus shifts from what the law says to what the law does.

Both Picasso and Holmes’s bad man analysis reveal that truth—whether in art or law—is shaped by the unseen. Questioning assumptions and looking beyond the immediate are essential to gaining a more complete picture of reality.

What is Active Listening

Active listening is more than shedding the instinct to center one’s own thoughts—it is about hearing the unspoken. In Robinson’s Metamorphosis, the protagonist writes, “I am a lawyer, I am never far from evil.” To be a lawyer is to be sensitized to the presence of all things in everyone. It is to recognize that morality is not a fixed binary: people are neither wholly good nor irredeemably bad. Human nature in its full complexity exists within shifting contexts of survival, power, and belief.

This is why active listening extends beyond spoken words. Clients lie. Not always out of deception, but out of shame or an inability to fully articulate their experiences. Trauma distorts memory. Fear shapes narratives. A lawyer who listens only to what is explicitly stated will miss the deeper reality at play.

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I recently read the New York Times article “Who Gets to Kill in Self-Defense?” The author ponders how many of the 12,000 women incarcerated in the U.S. killed in self-defense after enduring years of abuse. Anita Ford, sentenced to life imprisonment, exemplifies this dilemma. Her case highlights how legal narratives reduce human experience to rigid categories: victim or perpetrator, justified or unjustified. While the law is designed to recognize immediate danger, it struggles to account for the slow, cumulative violence of coercion and control in the private sphere. There was no room for Ford’s reality.

My takeaway is that law is not merely about what is argued—it is about who has the privilege to speak and who does not. The deeper truth often lies in what the law refuses to acknowledge. Ford’s case reveals a systemic legal failure to address lived experiences that do not fit neatly within formalistic structures.

Creativity as a Transformative Force

Creativity is often associated with the arts, but it is just as essential in law. The best legal minds do not treat facts as unquestionable truths. As Picasso disrupted traditional forms to force a new way of seeing, great lawyers disrupt societal norms to force a new way of thinking.

Law, at its core, is an attempt to impose logic onto primal experiences that defy formalization. It is a manipulation of words, an elaborate system that gains legitimacy not because it is inherently just, but because enough people believe in its authority.

Perhaps this is why Moglen introduced this course as an extended exercise in active listening. To challenge the law, one must first identify who it excludes, where its gaps lie, and what is being rationalized—all of which exist, but in silence. Creativity then steps in to expose blind spots and reimagine what the law could become. Hence, a law student’s goal should not be limited to mastering the language or learning how to operate within the system, but also knowing when to break rules. It is to understand that legal structures are not fixed, universal truths but malleable constructs molded by those bold enough to question them. I am searching for this courage.

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