Steven D. Schwinn is an associate professor of law at The John Marshall Law School. He is co-editor of the Constitutional Law Prof Blog http://lawprofessors.typepad.com/conlaw/ and he can be reached at firstname.lastname@example.org or (312) 386-2865.
We all know the importance of good judgment. In our profession, we strive for good judgment, and we value it in our colleagues. It is perhaps the most important attribute of a lawyer.
But we provide almost no formal education on good judgment. There’s no law school class on “judgment.” There are no CLE courses on “judgment.” And even so-called skills courses, externships, and the like typically address judgment only in a roundabout kind of way, not as a principal focus. Perhaps the closest we come to formal education in judgment is a clinic or a good professional responsibility course.
Maybe we don’t teach judgment because we think judgment is innate — that it can’t be taught — you either have it, or you don’t. Or maybe we don’t teach it because we think that students and lawyers pick it up through their ordinary studies, practice, and experience: we don’t need to teach it directly, because we teach it indirectly. Or maybe we think that anybody with the aptitude for law practice also must have good judgment.
But experience teaches us otherwise, and we’re due for a healthy dose of formal education in judgment. I’m not advocating a new law school class or CLE course in abstract “judgment.” Like so many other skills and aptitudes, judgment needs to be contextualized. We need to incorporate good judgment throughout our law school and CLE curriculums, so that students learn and practice good judgment in context.
A contextualized judgment education likely has several foci. Perhaps most importantly, it focuses on foresight—the ability to anticipate the variety of likely outcomes of today’s problems and decisions tomorrow, next week, next month, next year, 10 years from now. As we know, our case-focused legal education hardly gives adequate attention to this kind of foresight. But it’s easy to incorporate even into case-based classes: simply deconstruct the decisions leading to cases, and critique the decision-maker’s foresight; or construct the likely longer-term results of cases.
A contextualized judgment education might also focus on broad-based, inclusive, and balanced analysis—the ability to see a problem from the many different perspectives of the different actors involved, to balance those perspectives, and to consider them in forming a judgment. It might also focus on decision criteria—the various forms of deontological reasoning, the various forms of consequentialist reasoning, and other ways of making hard choices. And it certainly focuses on critical and analytical thinking.
Some of these foci are already included in formal legal education; they’re necessary parts of “thinking like a lawyer.” But we don’t always think of them—or teach them—as part of judgment. Considering the importance of good judgment to our profession, we might do more.