August 2002
Reading Directions Like a Lawyer
by Jeff Tolman1
The law review arrived, and I scanned the articles to see if there was anything remotely touching on the actual practice of law. Maybe, for a change, some academic had written an understandable, practical summary of the law on innocent misrepresentation, or an analysis of maintenance awards. Perhaps a thoughtful article on how to serve clients better. Instead, the lead2 article described how a law professor inspires students to analyze language and policy through the directions "shake well before opening" on the back of a salad-dressing bottle.3 Students, he professes,4 learn that policy issues and ambiguity are everywhere if a lawyer looks hard enough.5
I flashed back to fall 1974, two weeks into my law school career, when I saw the movie Paper Chase. Professor Kingsfield, played by actor John Houseman, was standing calmly but firmly before his class of first-year Harvard law students. "I am going to take your brains," he began,6 "and turn them to mush. Then (pregnant, dramatic pause), I am going to teach you how to think like a lawyer." I was stunned. Like Kingsfield's students, soon I, Jeff Tolman, would be thinking like a lawyer. No more thinking like a part-time sawmiller, or someone from a town of 700, or an Eastern Washington University grad. I would soon be thinking like a lawyer. It sounded profound, almost mystical.
Now, twenty-some years later, law students are being taught the same lesson from a container of balsamic vinaigrette. Who says the law moves slowly?
Members of the class reading labels found the directions can have many meanings. Shake yourself, then open the bottle? Okay, if all you want is oil on your salad. Find a water well, shake it, then open the bottle? Seems quite a bit of work just to liven the taste of lettuce. Shake the container "well before" opening the bottle? How long before? Days? Weeks? Months?
Thoughts flooded my brain.7 Shouldn't the exercise be just the opposite — take a lawyer word (per stirpes or inter alia come to mind) and analyze it as a nonlawyer would? Perhaps that would make a publishable law review article. A touch of practicality and reality in legal education would be a nice twist.
Having mastered the salad-dressing-analysis technique, I wondered how the students would overcome some of life's other verbal landmines. No doubt they would be traumatized by a prescription instructing them to "take one pill twice a day." Take it where? The same pill?
The salad-dressing-lawyers-to-be must hate road signs. After all, what does "look both ways before crossing" really mean? Look happy, then sad? Look up, then down? Appear unkempt, then kempt? What if there are more than two ways to look? At a Catholic school like the one I attended8 would students be required to look two directions before making the sign of the cross?
Assembly projects must be interesting for the salad-dressing lawyers. While putting a cabinet together recently I was directed to "insert part 7 into assembly #10 while screwing."
This reminds me of an article by Bill Hall9 titled Too Tough for a Doctor of Law. In Moscow, Idaho, a lawyer was cited for illegally parking in a hospital space reserved for "doctors only." The attorney, a former law review editor (or student in the salad-dressing class, no doubt) challenged the citation, alleging that he was, in fact, a doctor — a doctor of law. Hall was appalled at the attorney's inability to comprehend the purpose of the sign: to make sure no patient would bleed to death while her physician frantically searched for a place to park. The designated space was not, as the parking violator must have assumed, available in case of an acute outbreak of litigation.
Perhaps the salad-dressing session does, as the author concludes, show the need for policy to interplay with words. There may be easier ways to help lawyers interpret phrases, though. Over the years, when I wonder if I am observing something too much like a lawyer, I ask my kids for advice. They haven't had the privilege of going to law school and agonizing over the directions on the back of condiment bottles. Instead, they use their common sense and human experience to interpret life in a simple, practical and straightforward way. Like clients and jurors do. Like good lawyers do. Like all lawyers should — whether law professors and law review editors think so or not.10
Jeff Tolman is a lawyer and part-time municipal court judge in Poulsbo. He has served on the WSBA Board of Governors, and is a frequent speaker and writer on law-related topics.
NOTES
1. Graduate, Greybull (WY) Junior High, 1967, with pimples; Asotin (WA) High School, 1971, with honors; Eastern Washington University, 1974, with high honors; Gonzaga Law School, 1977, with luck.
2. "Lead" meaning first; initial; the article opening the text portion of the publication; not to be confused with the substance lead, which is commonly used to sink fishing line.
3. No kidding.
4. A word used to describe something said by a professor.
5. See Berg v. Hudesman, 115 Wn.2d 657, in which the Washington State Supreme Court apparently agreed, holding that the background of a contract is relevant even when the words of a contract are unambiguous.
6. Until I read this law review article I never thought he might be saying he would actually take their brains. I assumed he was talking figuratively. After this article I must reassess the idea that he was, in fact, threatening to do bodily harm to each of the students in the room by decapitating them and removing their brains or sucking their brains out as in Starship Troopers.
7. This is simply a metaphor — or maybe a simile, I forget the difference. The actual amount of fluid around my brain did not change at all as I reflected on the article.
8. Jeff Tolman, graduate, Gonzaga University School of Law (Catholic), 1977, see 1 above (or as lawyers say, infra).
9. Bill Hall, whose books include Bill Hall and the Killer Chicken and Son of the Killer Chicken, is a brilliant and funny editorialist at the Lewiston Morning Tribune.
10. The author wishes to thank Judge Jay Roof, who is the world's greatest morning coffee companion and often assists in this author's articles; his law partner Mike Kirk who was once a law review editor, and though it's been years (he's over 50 now), recalls the articles that he edited seeming relevant at the time (Mike concedes, though, that many law review articles don't seem as relevant to a middle-aged domestic-relations lawyer now); and his law partner Chris Franz, the youngest lawyer in the office, who recalls some notion of a food-and-law class but didn't take it because it wasn't likely to be on the bar exam.
