Terry Retson: Should the Socratic method have a place in law schools?

The Socratic method is the process found in the dialogues of Socrates with his contemporaries, as related principally by Plato and Xenophon. Most attorneys were introduced to the Socratic method on their first day of law school. As law students know from painful experience, the method is practiced by professors cold-calling on students, asking them questions and following all answers with more difficult questions, until the student realizes that any answer given will be a contradiction.

The process is the entirety of the Socratic method. Many of the dialogues include discussions of profound questions but end without reaching any conclusions. They just end. In Books I and II of Plato’s “The Republic,” there are extensive discussions of the meaning of justice. Socrates deals with the pompous Thrasymachus as an adversary and with Glaucon and Adeimantus in a much more constructive manner. In neither book, however, is any conclusion reached on the fundamental nature of justice.

Ward Farnsworth of the University of Texas School of Law addressed the value of the Socratic method in the education of law students:

“The Socratic method … is a help toward intelligence and an antidote to stupidity. … [T]he reason the Socratic method is useful in the classroom is that it’s a style of thought better than the one we tend to apply naturally to important things. Socrates didn’t question people in order to teach us how to question people. He did it to teach us how to think.”

Farnsworth’s positive review is typical of the approval of the method given by law professors and indeed by most philosophers. Benjamin Franklin was also, at least initially, delighted with the Socratic method:

“I found [the Socratic] method … very embarrassing to those against whom I used it. Therefore I took a delight in it, practiced it continually. … [I] grew very artful and expert in drawing people, even of superior knowledge, into concessions the consequences of which they did not foresee, entangling them in difficulties out of which they could not extricate themselves, and so obtaining victories that neither myself nor my cause always deserved.”

Franklin gradually stopped using the Socratic method, concluding:

“I think the practice was not wise; for in the course of my observation, these disputing, contradicting and confuting people are generally unfortunate in their affairs. They get victory sometimes, but never get good will, which would be of more use to them.”

Socrates didn’t see his discussions as a competition or his refutations as attacks. He saw them as a shared inquiry into the truth. Socrates discussed the training of youth in dialectic — philosophy and logic under what we now call the Socratic method — in Book 7 of “The Republic.” Instruction began when students were 30 years old, and the training would go on for five years. However, Socrates warned that students of dialectic are full of “lawlessness.” Great care must be taken to avoid the damage that may be done while the students have less than a full understanding of dialectic, which can change a student from “a law-abiding citizen into a criminal.”

When students first get a taste of argument, he said, “they regard it as a kind of game to be constantly turning arguments into their opposites. They imitate those they hear proving other people wrong by going out and doing the same thing themselves. They’re like puppies in the delight they take in tugging at anyone within reach and tearing them to pieces with their arguments.”

Socrates warned that students only partially trained in dialectic argument would “come in for a lot of criticism in the eyes of the world.”

There’s a disconnect between practicing dialectic and practicing law. Lawyers must represent their clients’ interests rather than engage with opposing counsel in a shared inquiry into the truth. Socrates’ warnings notwithstanding, law school training and experience in practice certainly do train attorneys for the realities of their duties to their clients within the existing court system. Law school prepares lawyers for a court system that entrusts most of the pretrial proceedings to the attorneys, with only sporadic direction from the court.

Attorneys have considerable power. They can file complaints and force unwilling opposing parties to incur costs, take up the time (and anguish) of their principals and take the risks inherent in the litigation process. An attorney can begin a case with factual allegations that do no more than raise the right to relief above the speculative level, even if the court believes that a recovery is very remote and unlikely, seek a temporary injunction to restrict the activities of the other party, and engage in discovery regarding any nonprivileged matter that’s relevant to any party’s claim or defense.

Misuse or abuse of these powers certainly happens and is probably, to some extent, the result of dialectic training in law schools. Law students learn dialectic argument (although much less than Socrates’ recommended five years) and learn to vigorously represent their clients’ interests. These are, however, two separate disciplines. Without an understanding that these are separate goals that must be balanced, endless argument is often the result. As one frustrated attorney noted:

“In my experience reason is often not rewarded. When your opponent wants to run up the bill, or is just plain ornery, there’s not a lot you can do. The discovery rules clearly sanction what I would call ‘garden variety’ discovery abuse, but judges seem resolutely uninterested in cracking down on this kind of lawyerly misfeasance. In so doing they create an environment of cynicism and resignation among practitioners [and] add to the legal arena’s poor reputation among non-lawyers.”

These complaints bring to mind the “lawlessness” in Socrates’ warnings. Concern about “the legal arena’s poor reputation among non-lawyers” echoes Socrates’ concern that misuse of dialectic training will “come in for a lot of criticism in the eyes of the world,” and Benjamin Franklin’s observation that practitioners of dialectic may “get victory sometimes, but never get good will.” Nevertheless, attorneys who may seem unconcerned with discovery rules are generally working in the best interests of their clients. Increasing the opponent’s costs often serves to advance the best interests of the “lawless” attorney’s client by resulting in an improved outcome. Working with opposing counsel in a shared inquiry into the truth isn’t what litigators do and normally isn’t what they should do.

Edward H. Levi seems to have observed this disconnect and possibly the limitations in training through dialectic. “The contrast between logic and the actual legal method is a disservice to both,” he said. “Legal reasoning has a logic of its own.”

This isn’t to say the Socratic method shouldn’t be used in law schools. It should. As Ward Farnsworth wrote: “It’s a style of thought better than the one we tend to apply naturally to important things.” But law students’ three-year introduction to this style of thought should include a resolution of the use of the dialectic process “in the search for truth” with the obligation of attorneys to vigorously represent their clients’ interests. This may help newly minted attorneys resist the inclination to behave “like puppies in the delight they take in tugging at anyone within reach.”•

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Retson is of counsel at Krieg DeVault LLP.