come in here with a skull full of mush and, if you survive, you leave thinking like a lawyer. Professor Kingsfield was of course referring to the fact that in law school, one learns how to think like a lawyer, and this was different from learning the law. The need to undertake studies covering lessons to think like a lawyer is reflected in 'Threshold Learning Outcome 3 – Thinking Skills'7 (TLO 3). The introduction includes the following: Graduates of the Bachelor of Laws will be able to: (a) identify and articulate legal issues, (b) apply legal reasoning and research to generate appropriate responses to legal issues, (c) engage in critical analysis and make a reasoned choice amongst alternatives, and (d) think creatively in approaching legal issues and generating appropriate responses. Students often ask for an explanation of what it is to 'think like a lawyer' in the first place. The comprehensive answer can certainly be found in textbooks dedicated to achieving this outcome.8 The following passage in the first year text which I prescribe is typical: Those wishing to understand and practise law in Australia today need to develop knowledge and skills in diverse areas ... this knowledge and these skills – or, at least, an introduction to them – are covered in this book.9 It is suggested that a student's own recognition of his or her untrained mental state is an important milestone and in fact is the logical starting point of the journey designed to conclude satisfactorily with the ability to think in a lawyerly way. For that reason, a lecturer should try to furnish the student with an illustration of an untrained mental state early in his or her study of the law. Although, as suggested, a comprehensive explanation of it is readily accessible in first year texts when read in conjunction with TLO 3, the lecturer's challenge is not so much to engage with the nuances of these explanations, but rather to provide a concise explanation of a 'mushy' mind for the limited practical purpose of being the figurative starting point on that
journey. Bearing in mind again that the beneficiary of this explanation is the first year law student rather than someone insisting on pedagogical accuracy, the answer to that question likely reveals itself through the following two-phased exercise: First, to suggest that the acquisition of legal thinking skills is aligned with the mastery of the ability to show a logical link between the law and its application. Foundational legal texts devote much content to showing the 'logical connection' between the law and its application, some being devoted to this aspect alone.10 It might nevertheless be suggested by some that this is not the only legal skill demanding mastery.11 The suggestion is valid; on the other hand, legal problem solving comprises a significant part of legal studies, and, in turn, the ability to demonstrate a connection between the law and its application is a skill particularly demanded by legal problem solving. In a reprise of the "skull full of mush" idea, Professor James Gardner in his seminal work on advocacy made the following observations regarding a failure to show the connection between the law and its application: Most people do not think in an orderly way. Thoughts do not traverse the mind like a military parade, four abreast in neat rows … not surprisingly, most people argue the way they think – haphazardly, without clear structure, and often without recognising or consciously understanding the logical connections between their own arguments and contentions [emphasis added].12 The illustration of a flawed answer to a legal problem, especially one where the author has manifestly failed to show the link between the law and its application, is thus the paradigm, albeit admittedly utilitarian, illustration of an unlawyerly mind, and provides a handy starting point to show the first year law student the mindset demanding realignment through legal education. This logically brings us to the second phase of the exercise, namely actually to present a few easily understandable illustrations of mushy, unstructured thinking. Given that our first year law student will likely know little black letter law and might struggle to appreciate authentic legal reasoning, this second aspect could itself be broken down into two separate parts, namely to provide some
illustrations based on commonplace reasoning, followed by some examples based on authentic legal doctrine.13 Dealing with commonplace examples first, students can be introduced to the 'reasoning' in examples such as:14 John is already 16 and does not need to wear glasses yet, but he is certain to be short-sighted later in life as his parents both are shortsighted. I have little doubt that the painting is a forgery, or it would not cost so little. Given some guidance, law students will mostly appreciate that the flaw in each example is the failure to demonstrate the connection between some general assumption (analogous to a rule of law), and the facts to which it is to be applied. In the first example, the general assumption is that: "children of shortsighted parents are certain to suffer from short-sightedness" and the facts to which it is to be applied are that "John has short-sighted parents"; the conclusion is that "John will definitely become short-sighted". Following this explanation, students having now been exposed osmotically to the mindset of deconstructing an argument into a relevant general assumption and its application, usually have less difficulty in identifying the flaw in the second example. In the next series of exercises, one could explore analogously flawed examples, but now based on authentic legal principle, e.g.: Because of the rule in Derry v Peek,15 we can see that John committed deceit. Quite clearly, Peter's response was not an acceptance. Veronica's argument is supported by the principles in Turner.16 The first year law student, having been given some, although limited, instruction in syllogistic thinking, should be able to see that the author has failed to show the logical links between the relevant rule of law and its application in the particular circumstances of the case. In the first example, it is not clearly demonstrated what the principles in Derry are, nor the basis upon which it is said that, based on them, John committed deceit. Exasperated lecturers who must assess such answers frequently describe them as resembling 'alphabet soup' or similar.
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