“Don’t ‘Think Like a Lawyer’ (Too Much)”
Professor Jennifer Nou's Remarks at the 2024 Entering Students Dinner
I would like to begin tonight by taking a good, long look at all of you, our JD Class of 2027, Transfer Class of 2026, and LLM Class of 2025: so fresh-faced, well-rested, so innocent, so unsullied by what will be our collective efforts to transform you into ruthless legal minds from the University of Chicago. All of you currently have fascinating interests, or so TikTok tells me: you apparently cook feta pasta and scrambled pancakes; you do lots of dead hangs and something called “reformer Pilates;” you are very demure and very mindful. You have friends, romantic partners, families that love you. In short, you are fully formed human beings who took the LSATs and now find yourselves here, at the University of Chicago Law School, about to embark on a completely new kind of intellectual journey.
I am taking this long look because when I see each of you at graduation, despite all that we’ve done to you, I want to be able to still recognize the core, the essence of who each of you are sitting here tonight: the richness of your life experience thus far, your individual passions. For, I very much hope, that in these years ahead, that you sometimes remember this unsolicited piece of advice that I will offer tonight: don't think like a lawyer (too much).
You see, thinking like a lawyer will have some serious side effects, especially in your first year. Take, for example, the simple act of ordering pizza. Pre-law school, you’d say, “I want a large pepperoni.” Post-law school, it’s: “I hereby order a consumable food product with cured, spiced meat to be uniformly distributed. Delivery shall occur within 30 minutes, with failure to comply constituting a material breach of contract.”
Similarly, pre-law school when you went to download the latest app, you just checked the box that said, “I have read and agree to the Terms and Conditions and Privacy Policy.” And then you went on your merry way to play Wordle. But now when you go to download LinkedIn or whatever, you are actually going to try to read the fine print, even though my colleague, Professor Ben-Shahar, will tell you that it is a completely ineffective method of actually informing you about your legal rights.
On top of that, some people will soon no longer understand you. You’ll start throwing around incredibly pretentious Latin phrases like res ipsa loquitur and expressio unius est exclusio alterius. The withering looks your family gives you over Thanksgiving will be well-deserved.
But wait a minute, you say, why are you telling us not to always think like lawyers? Isn’t that why we’re here? My tuition check for the quarter is in and now you’re pulling the rug out from under us. No, no, you’ve misunderstood. For the next year or more, all of you will be exquisitely trained to think like a lawyer. I can genuinely think of no better place for that endeavor than at this law school. It is here that you will learn how to spot legal issues, analyze the relevant precedents or texts, and apply legal rules to reach persuasive conclusions.
In your first year, you will invariably build these skills by using casebooks that will give you the impression that lawyering is only what happens in court. In other words, you will be taking the ex-post (after the fact) perspective, rather than the ex-ante (before the fact) perspective. See, I told you lawyers use annoying Latin phrases. So, you might end your first year with the impression that “thinking like a lawyer” is how to wield your brilliant arguments before a judge and win over juries. This ex-post perspective will not sufficiently impress upon you that another critical role of the lawyer is an ex-ante one, to keep folks out of court: by drafting thoughtful legal instruments in advance or otherwise counseling you on how to consider risks.
Moreover, in the real world, statistics suggest that only about five percent of personal injury cases, for example, proceed to trial. Why? Trials are incredibly expensive. They are unpredictable. They can sometimes reveal embarrassing things for your client. Once in practice, you will often come across the saying that a “bad settlement is almost always better than a good trial.”
During your first year, you will also learn what kinds of legal arguments lawyers can make to answer fundamental questions, such as whether a taco is a “sandwich.” The question might arise because a written agreement signed by your client provides that a restaurant space can only be used to serve “sandwiches.” And your client wants to sell tacos. Spoiler alert: turns out the answer to the question of whether a taco is a “sandwich” depends on the jurisdiction you’re in. Is the answer “no,” tacos are not sandwiches, because of the dictionary? That dictionary says that a sandwich is “two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.” A taco, at a minimum, does not have two thin pieces of bread.
Or is the answer “yes,” a taco is a sandwich, because as Richard Posner (a former federal judge and faculty member here) pointed out, we know that sometimes sandwiches in our ordinary parlance can have more than two slices of bread (a club sandwich) or can they have just one (an open-faced sandwich). So, perhaps tacos are just “Mexican style” sandwiches. We should also check, by the way, whether there are any favorable judicial precedents on the books interpreting gyros as “sandwiches.”
But while you are puzzling about fascinating questions like these, you will quickly forget that the answer actually matters to someone: in this case, Martin Quintana, the restaurateur in Indiana who wanted to open his taco joint, The Famous Taco. Today, because of his court win, The Famous Taco indeed exists in Fort Wayne, Indiana. It currently gets 4.3 stars on Yelp out of 118 reviews with one of those reviews calling the place “authentic” and “legit.”
Forgetting that there are faces to your case captions will happen often; you likely won’t notice it at first. You will soon read, for example, about an unfortunate turn of events in Wisconsin: some kid kicked (tapped?) another kid in class right below the knee, and his leg suddenly became inflamed, produced pus. The kicked kid became bedridden, underwent multiple surgeries, and now his leg may need amputation. Turns out he had a pre-existing injury, but the other boy’s action greatly exacerbated it. Before you know it, you will be off analyzing increasingly complicated hypotheticals. What if the kick had occurred on the playground instead of the school room? What if the kid yelled “Boo” to the other kid, didn’t touch him, but the other kid falls out of the chair and hurts his leg anyway? Liability? All of this instead of wondering whether that young boy, Andrew Vosburg, was okay. Did his leg have to get amputated? No. Was he able to live a productive and meaningful life afterwards? Thankfully, yes, by many accounts.
“Forgetting that there are faces to your case captions will happen often; you likely won’t notice it at first.”
Now, I have no doubt that your searing legal analysis of Vosburg v. Putney will impress Professors Levmore and Chilton. But while you are furiously briefing cases about people getting killed by trains or badly injured by firecrackers, perhaps you could take a moment to sometimes remember that, at the end of the day, the law is about people. And these people are sometimes involved in human tragedies that deserve acknowledgment and care.
Relatedly, learn early how to ask yourself, what does my client really want? Perhaps remember in these moments Disney’s recent initial decision to think like a lawyer. Kanokporn “Amy” Tangsuan, a 42-year-old family medicine specialist from New York, tragically died from an allergic reaction after she ate at a Disney World resort restaurant. The wait staff had assured her multiple times that the dishes she ordered did not have dairy or nuts in them. After her passing, the woman's husband sued Disney for wrongful death. Disney’s lawyers countered with an argument straight from 1L contracts: this grieving widower, you see, had “agreed” to arbitrate — settle any disputes with Disney outside the courtroom — when he created a Disney+ streaming service account for a month-long trial four years earlier. The language was right there in the terms and conditions he clicked through.
The public backlash to this argument was swift. It made news headlines everywhere; you probably saw them. People were outraged: how could signing up for a Disney+ trial to watch “Finding Nemo” mean that you waived your right to go to court when Disney (allegedly) negligently kills someone you love at the Happiest Place on Earth? Disney reversed its litigation position and belatedly expressed corporate empathy, but the damage to its reputation was already done: Not only is Disney heartless, but it doesn’t care about families with allergies. So even if you have a plausible legal argument, sometimes thinking like a lawyer is ultimately not what is best for your client. More broadly, as you begin to think like a lawyer in your daily lives, please remember that real people with real problems sometimes just want to hear — not a lengthy analysis of proximate cause — but “you know, I’m sorry that happened to you.”
Speaking of people, please do not forget about the people around you, both the best friends that you will make here and the friends and family outside of these walls. Please especially keep in touch with those outside of law school. Only they will be able to give you the perspective you will need when you first confront the Bluebook, or worse yet, the Maroonbook. Both are incredibly tedious and arcane systems of legal citation that will ask you to care about whether a comma has been italicized. In those moments, you will need those family and friends safely away from the herd mentality that is law school to shake you, ask you what the heck you are talking about (italicized commas?!) and why you are so stressed out about them.
In close, let me be clear: I sincerely do hope that you learn to think like a lawyer and bust that out during Socratic cold calls and at exam time. Know what IRAC stands for and eventually what the “eggshell plaintiff” rule is. But please don’t ever lose your ability to think like and be a normal human being with common sense and empathy. In other words, please keep thinking like the well-grounded individuals you are right now. Because the best lawyers, I submit, are not the ones who think like lawyers — they are the ones who think like people first.
So, once again, welcome: we are so excited to get to know you for who you are.