The day I was accepted into law school I thought I would learn the law. I learned much more. I learned to weigh the importance of various facts, apply an appropriate legal principal and reason out a decision. Law school was more like my math and logic classes than my other liberal arts classes in college. But a math problem has one correct answer, an answer to a legal question is less certain.
Outside of class we read mountains of court decisions to learn how judges worked through this process. Then we “briefed” each case by identifying the facts we deemed important, the legal issue(s) in the case and the court’s application of legal principles to the facts to reach a decision about the issue(s) involved. This was challenging but not as challenging as the classroom experience.
Often class started abruptly with the professor calling on a student to stand and face a series of questions by the professor. It was not your typical question of “what is the answer Ms. Smith?” No, the professor might start by asking for the court’s decision in a case and then evolve into a “what if” labyrinth of questions. Each question involved changing a fact or two in the case. We were to figure out how, if at all, those different facts might change the outcome.
Teaching through serial questioning like this is called the Socratic Method after the Greek philosopher, Socrates. Socrates engaged in questioning of his students in an unending search for truth; often elusive. The Socratic Method is used to develop critical thinking skills in students. It plays out something like this:
Mr. Contracts Professor: Mr. Holloway, what is the definition of a contract?
Mr. Holloway: A contract must have and offer, an acceptance, consideration and common understanding between the parties about those terms.
Mr. Professor: OK, Jim says to John, “I’ll cut your lawn for $50.00.” John replies, “That sounds good to me.” Do we have a valid contract?
Mr. Holloway. It seems so. The consideration Jim offers is the lawn cutting and the consideration he wants in return is $50 and John reciprocates by agreeing.
Mr. Professor: What if Jim cuts John’s lawn on Monday but John wanted it done Tuesday? Did the parties have a mutual understanding?
Mr. Holloway. They did not discuss when the lawn would be cut but it seems John still owes Jim $50. Yes, they did have a mutual understanding of the service and price and that is enough.
Mr. Professor: But, doesn’t the misunderstanding of the day the lawn was to be cut show they did not have a mutual understanding?
Mr. Holloway: Perhaps not on that issue, but it does not seem right that John could avoid paying Jim since John did not specify the day he wanted it done. He should have told Jim he wanted it done on Monday.
Mr. Professor: If they had a contract, can John change it by adding a new condition?
Mr. Holloway: I don’t think so.
Mr. Professor: Can John unilaterally terminate the contract if Jim doesn’t agree to the new condition?
Mr. Holloway: Nothing was said about termination.
The Professor now calls on a new student to continue the questioning. I sit down, perplexed by the exchange.
And on it goes as Mr. Professor introduces the concept of “reasonableness” adopted by courts for interpreting contracts that omit terms or are ambiguous. Again, Mr. Professor grills the student with hypotheticals for five or ten minutes to flesh out an understanding of reasonableness.
Some professors were more difficult than others and might grill a student for 30 minutes. Classes were typically in a lecture hall with fifty or more students. If your logic was flawed or you were unprepared it would be in front of a large audience. But no one was laughing because any sign of enjoying another’s struggle only increased your chances of being next. It felt like we were Roman citizens who were lucky enough to have scarce tickets to the brutal “entertainment” in the Coliseum. The only difference was any of us could be dragged from the audience to be part of the entertainment. It was great incentive to do each day’s assignment.
Teaching by the Socratic Method taught us that facts matter. Changing facts can change legal outcomes. We also learned to think critically; to think like lawyers. But lawyering in the real world is more complicated because lawyers search for facts from people, not books. I’ll share some thoughts about that next time.