Critical Thinking Crisis Plagues Legal Profession’s Entry Level

This article was originally published by Bloomberg Law. 

Law firm partners frequently tell me they are worried that associates fresh out of law school aren’t approaching legal problems with the type of analytical thinking successful lawyering requires. Is this lack of critical thinking skills a generational problem specific to Gen Z lawyers, or does the issue go back further?

Some may argue that the influence of social media created a generation of lawyers who lack critical thinking skills, while others may blame the rise of standardized testing, or even the disruption of the pandemic. I would argue it doesn’t matter.

The need for robust critical thinking skills among newer law firm attorneys today has become absolutely indispensable.

Thanks to the digital age and the proliferation of artificial intelligence, lawyers have an unprecedented wealth of information at their fingertips. Are these new lawyers being adequately trained to analyze and assess the information before them? The answer is most likely a resounding no. This instant access to information makes critical skills training for our newest attorneys even more urgent.

Critical Thinking Deficits

I have seen firsthand numerous examples of this skills gap.

Associates drafting a contract using a sample precedent agreement routinely leave provisions from the precedent that don’t belong in the new contract. New litigators draft motions that include arguments relevant to a sample motion form that are inapplicable to the current motion—then fail to include other key arguments because they’re too wedded to the sample.

Associates will often cite cases to support an argument but fail to explain exactly why the case is applicable. They expect the reader—usually a court—to make the connection themselves, in essence telling the court their client should win “because this case.” Or, associates start to mark up a document without first thinking through how much time and resources the client wants to spend, whether they even have the leverage to negotiate the positions, or the most practical approach for the size and scope of the matter.

What is the common denominator here? It’s a failure to ask “why.” Why was the provision in the precedent agreement and should it be in the agreement being drafted? Why was a certain argument made in the sample motion and does it even apply to the current case? Why did the court rule a certain way in the cited case, what facts did it rely on to reach that ruling, and how does any of this relate to the case at hand? And, finally, why am I spending time marking up an agreement without first talking to the partner about the client’s goals and resources?

In my experience working with law students and junior attorneys—as an adjunct professor and supervising attorney—this failure to ask “why” is one of the most significant stumbling blocks for an associate seeking to develop as an attorney.

Learning to Ask Why

In today’s legal landscape, the lack of critical thinking skills is an even more significant problem with more serious consequences. With widespread availability of information and AI tools at the hands of associates, the ability to ask “why” is even more urgent.

Every associate should ask themselves whether the information they just obtained through a search platform, whether AI focused or otherwise, is to be trusted. What’s the source? Is it complete? Is it accurate? Is it up-to-date? Is it sufficiently nuanced to relate to the case at hand or does it just sound like it applies?

If we assume law schools aren’t adequately training emerging lawyers to develop these critical thinking skills, what can be done once these graduates are first-or-second year associates in a firm?

It can be difficult for partners to balance training time with their workloads. This can in turn impact the billable hours of senior team members.

But training new lawyers to ask “why” and giving them opportunities to exercise and strengthen their critical thinking skills is essential. Associates will be practice-ready, bill more efficiently, and reduce the need to write-off their time.

The same partners who bemoan the lack of critical thinking skills should invest in explicit critical thinking training for new associates. In the long run, this will develop productive and successful associates, and improve the ability of our future attorneys to best serve their clients.