A Beginner's Guide to Legal Education

Professor James R. Elkins
College of Law, West Virginia University

The Faith of Leapers

In the opening pages of Plato's Protagoras, we find Hippocrates rushing in the early morning hours to see his friend and mentor, Socrates. He awakens Socrates with exciting news — Protagoras is in town. Hippocrates, it seems, fears that without Socrates help, Protagoras, a most popular teacher, will not accept him as a student. Hippocrates wants to study with Protagoras but needs an introduction and recommendation from a respected elder. Hippocrates seeks to become a student of Protagoras because he is a popular and highly regarded teacher in Athens. But what does he teach?

Socrates introduces the question and we learn that had he failed to do so, the young Hippocrates would have given the question little thought. When Socrates ask Hippocrates what he expects to become as a result of his studies with Protagoras, two significant points are revealed: (i) Protagoras has wide-spread popularity in Athens, especially among young Athenians who want to get ahead in Athenian public life, (ii) those attracted to Protagoras are drawn to the claim that he is wise about many things. On closer questioning, Hippocrates admits that Protagoras is known in Athens as a sophist. The admission, it turns out, is troubling. Even an impetuous impressionable, young man like Hippocrates is not sure he wants to become a sophist.

Sophists, as we know, were ancient teachers of rhetoric who taught strategies for successful argument, philosophy, and the arts of living well. They were prominent in Socrates' day and are remembered now for their adroit, subtle, and sometimes specious reasoning. Today, the term sophist, when used outside academic circles, is used pejoratively to characterize one who engages in captious or fallacious reasoning, putting forth arguments that may sound plausible but are fallacious when examined more closely.

As it turns out, Hippocrates most decidedly does not want to become a sophist, but he does desire to become a man clever at speaking. There is a growing premium on such speaking at this time in Athens and Hippocrates wishes to learn those skills which will help him be recognized by his cohorts. Among the new breed of teachers who teach clever public speaking, Protagoras seems to have become the most prominent.

Socrates, concerned that Hippocrates has set off to become a student of Protagoras without fully realizing the consequences of learning the arts of clever speaking, pointedly reminds his young friend what is at stake in becoming a student of Protagoras:

Socrates says, "you are about to place your own mind (psyche) in the care of a man who is, as you say, a sophist . . . ."

Socrates asks, in amazement, "What's this? You do not know what a risk you are about to take with your mind (psyche)? If you had to place your body in somebody's care at the risk of its becoming good or bad, you would make a thorough inquiry to establish whether it was advisable or not, and consult the opinions of your friends and relations, and spend several days considering it; but now that something is at stake which you value more highly . . . by which your entire welfare is determined . . . you didn't consult your father, or your brother, or any of your friends, including me. . . . [F]irst thing in the morning you turn up, without giving any account of [Protagoras] . . . or asking for any advice about whether you ought to place yourself in his hands or not, and you are ready to spend both your own money and that of your friends, as though you had already arrived at the considered judgment . . . when you neither know him . . . nor have you ever spoken with him before[.] [Y]ou call him a sophist, and yet, asked what a sophist is, you show manifest ignorance, though you mean to put yourself in his hands."

A sophist, according to Socrates, is "in reality a sort of merchant or dealer in wares by which the mind (psyche) is fed."

Law Students Leaping

Law students, I fear, set out to acquire a legal mind in much the same fashion that Hippocrates sought out Protagoras — to learn the arts of clever speaking. My claim that law students are eager to take on and absorb whatever their new teachers have to teach is best witnessed in those poignant early days of excitement and energy when the new student of law takes up the study of law with great enthusiasm. Whatever the tangled strands of motivation and individual history that have set the student on this new quest, the early days with these new teachers involve romance, and the dance of seduction. Sophists and legal education alike appeal with the power to seduce, and promise a course of instruction so eagerly sought that far more seek the teaching than can be accommodated (paying whatever fee must be paid). Of all the possibilities knotted in this fateful decision to take up the study of law, that one can acquire the kind of mind and psyche (voice and character) that prizes, above clever speaking.

Law students are not, I think it safe to say, adverse to becoming clever. Yes, it is true that some have qualms and questions about where it all might lead, but their quibbles seem all too easily subdued into silence. Basically, students want to learn to be advocates, or speakers, who are clever on behalf of clients–clients who will pay them money to espouse their case or cause. Students of law seek the knowledge and skills that will allow them to help a client use the law to pursue a client's interest and get what the client wants. In becoming clever speakers in the cases and causes of others, there is a significant problem. One mark of the overly clever is that they learn not to worry about what their clients do in the name of the law. Lawyers, even as students, learn to justify leaving ends (justice, fairness, equality, community, harmony) to others because there is always a lawyer on the other side representing the opposing party which allows lawyers on both sides to avoid annoying concerns about the moral ends pursued by clients.

Law students are told on every possible occasion that they must learn to think like a lawyer, and since they are eager to become lawyers and trust their teachers, they are eager to lend their mind to legal thinking. But the problem, as briefly noted here, is that they are given no instruction as to the powers and pathologies associated with legal thinking, or to the possibilities that clients may pursue. The logic seems inexorable: to be a lawyer you must think like a lawyer, to think like a lawyer you need a Legal Mind, to acquire this mind you must submit to teachers who know how to help you train for and develop this kind of mind-set. Law school provides a logic, a kind of thinking, and the mind willing to do it. But like Hippocrates, the law student, seems oblivious to how this Legal Mind might shape her character, or what might happen with the persistent use of such a mind.

If law students follow in the unreflective footsteps of Hippocrates, we might ask, on their behalf, as Socrates would ask: What kind of thinking is it that students of law are asked to do? What kind of mind is it students work so arduously to acquire?

| An Education in Cleverness |

Notes

<1> There are many translations of this early Socratic dialogue, Protagoras. One I have found useful (and used in a law school course called "Socrates and the Socratic Method") was suggested by Lewis LaRue, a colleague at Washington & Lee. The quotes here are from that text: B.A.F. Hubbard and E. S. Karnofsky, Plato's Protagoras 5, 6-7 (Chicago: University of Chicago Press, 1982)

<2> Obviously, this linkage of Hippocrates to law students cannot be made for every student and it does not tell the whole story (but then what story would). Law students are a varied lot, but even so, are rather easily reduced to caricature. So much so, that caution is in order. Many students do, in fact, speak scripted parts in a drama that make them sound like legal caricatures, and many do it with relish. Caricature, in the world of legal education, is both a reality and a danger.

<3> "Whether lawyers are heroes or bums, our culture often views courtroom lawyers as deviously clever tricksters. Perhaps good lawyers have the ability to master mountains of evidence and the patience to prepare for trial by endlessly culling through depositions. But the best lawyers can outsmart their adversaries, bamboozling witnesses and capturing the fancy of judges and jurors, with parlor tricks." Paul Bergman, Pranks for the Memory, 30 U. S. F. L. Rev. 1235, 1235-1236 (1996)

<4> "The transplantation of a particular form of 'legal consciousness' in law students has been characterised by one commentator as the replacement of 'a justice-oriented consciousness with a game-oriented consciousness. It has also been described as teaching students how to think or feel like lawyers." Teaching an Adversarial Mind-Set?, The Australian Law Reform Commission, Academic Legal Education