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BY JESSICA TOMER
Legal Theory: The Unexpected Key to Being a Good Lawyer
A student reviews legal theory conference literature

If you want to be a good lawyer, you need to understand the legal theory behind your practice. That was the major takeaway from the recent legal theory conference held at New England Law | Boston. Keep reading as the expert speakers explain—and watch the conference below!

It’s true that hands-on experience is critical to a robust legal education—but not at the expense of learning the legal theory that underpins it all. In fact, the experts say understanding and applying legal theory is essential to a strong real-world law practice.

"Theory and practice are inescapably connected," said Phyllis Goldfarb, Associate Dean for Clinical Affairs and Professor of Clinical Law at the George Washington University Law School. She opened the New England Law | Boston legal theory conference on September 14, 2017, with an impassioned reminder that practicing law, conscientiously and with clarity, requires a thorough understanding of is theoretical foundations.

Goldfarb’s colleagues echoed her sentiments throughout the afternoon, addressing law students, faculty, and local attorneys visiting the New England Law campus. She was joined by law professors from across the country:

The conference—formally titled "The Importance of Theory in the Law School Classroom and in the Practice of Law"—was moderated by New England Law professors Gary Monserud and Lisa Freudenheim and sponsored by the school’s Center for Business Law and Women’s Law Caucus.

So you want to be a good lawyer

The key takeaway from these expert talks? Legal practice—or at least good legal practice—is undergirded by a solid foundation in legal theory. "Theory-driven practice can simply look like good practice," Goldfarb said. And consciously linking theory and practice makes for a thoughtful lawyer.

Lawyers need to ask themselves: Why am I making the choices I’m making? Why did a case unfold the way it did? What's informing my decision making? The answers often lie in legal theory.

When you don't understand the heart of law well, you don't practice well, said one conference guest, a 30-year veteran of the legal field, during a question-and-answer period. Theory is the conceptual framework that helps lawyers convince others.

Lawyers who don't understand the legal theory behind what they're doing are very limited in their ability to support their clients, another guest noted. He observed a preference for "bullet points" in his profession: easily digestible factoids and sound bites. But those shallow observations rarely make for long-lasting legal foundations. Without legal theory, you’ll never get to the root causes. Legal theory gives perspective on substantive justice, Goldfarb said, and theorizing happens on multiple levels.

But legal theory and practice have a reflexive relationship: theory needs practice, and practice needs theory. Theory itself is a practice, Goldfarb said. That's why the legal profession emphasizes debriefing, which often extracts lessons grounded in theory. She also reminded lawyers and law students that theories are provisional, not final. Theories can and do evolve as societal challenges change...

Legal theory as Dracula?

In commenting on the current rise of formalism, Professor Nyquist quoted legal historian Robert Gordon: "In science, dead paradigms stay dead. In law, they never really get killed off but hang around and, Dracula-like, rise from their coffins to stalk the earth."

Macabre metaphors aside, law students and practitioners may find these paradigms easier to digest if they stop thinking about them as pure theory and start thinking about them as normative instead.

Legal theory is valuable because it helps the practicer make sense of the world we encounter. Descriptive theory starts with observing how the law works in action. And lawyers can test theories to see if they’re supported by facts on the ground.

Legal theory is about what's happening outside the courts as well as within, said Professor Fleming of Georgetown Law. She used the Williams v. Walker-Thomas Furniture Co. case to discuss how litigation can raise the profile of activist causes.

There is a certain morality to any legal theory. Legal theory can empower lawyers to confront bias in our legal system, and theory has the power to shape society as we want it to be. Lawyers driven by the desire to help others by creating effective litigation strategies would do well to heed the lessons legal theory can provide, according to Professor Nyquist.

Watch the legal theory conference now

You can watch the first part of the conference below. The entire legal theory conference is on the New England Law | Boston YouTube page. 

Learn more about the Center for Business Law

You can learn more about the Center for Business Law here, including its real-world learning opportunities; conferences, symposia, and colloquia; and the moot court/mock trial program.

Jessica Tomer is the Web Content Manager at New England Law | Boston.