CHAPTER 2

Challenges Quiet Law Students and Lawyers Face

I owe Socrates an apology. For two decades, I was mad at him for inventing the Socratic Method—his intellectual dialogue technique adopted by law professors and judges for use in the classroom and courtroom. As an introverted law student and attorney, I viewed the Socratic Method as a weapon of mass destruction. But then I read Socrates Café by Christopher Phillips123 and discovered my gaffe. Socrates’ original method is quite compatible with the quiet, thinking lawyer’s approach to the law, a reassuring notion for introverted law students and attorneys. By modeling Socrates’ intellectual humility (a trait defined by former justice of the Supreme Court of Wisconsin, William A. Bablitch, as “an awareness of what we do not know, and an awareness that what we think we know might well be incorrect”124) and a mutually respectful approach to engaging with others in the law, introverts can pack a big punch.

Socrates (c. 469–399 BC), a founder of Western philosophy, hailed from Athens. No Clooney of his time, the public often mocked him—in plays and social gatherings—for being unsightly according the aesthetic standards of fifth-century, BC, Greece.125 He didn’t care much about creature comforts,126 but garnered personal fulfilment from interacting with a motley assortment of people. Socratic scholar, Paul Johnson, describes Socrates as “a sensible, practical, down-to-earth man, interested in usefulness, not perfection, and inclined to make allowances for the infinite variety of human nature.”127 Notably, Socrates did not consider himself brilliant; in fact, he “didn’t think he knew the answers, or that knowledge was the rarified domain of so-called intellectuals.”128

As the story goes, there were Seven Sages, wise men of ancient Greece—philosophers, politicians, and legislators—who assembled periodically in the southern city of Delphi to share practical wisdom with the masses. One or more of the sages (possibly Solon of Athens and/or Thales of Miletus) espoused a motto: “Know thyself.” The sages inscribed this adage on the entrance of the Temple of Apollo in Delphi, an imposing edifice poised on a summit overlooking the Mediterranean Sea.129 Socrates was a humble, middle-class guy,130 and once noted, “I am not yet able, as the Delphic inscription has it, to know myself.”131 Aspiring to expand the boundaries of his intellect, however, he emphasized the importance of seeking to learn what he didn’t know. In his quest to know himself, Socrates realized he had an instinct for questioning himself and others; “the investigation of the internal world of man was something he could do and wanted to do.”132 Thus sparked his Socratic Method of Q&A. Ever modest, he “did not contend that following him was ‘the way’—just a way to find your way.”133

Daily, Socrates roamed Athens asking questions of people in all walks of life, not just elite illuminati but street vendors, friends, and playwrights. Why? According to Phillips, “Socrates didn’t just question for the sake of questioning. He questioned out of conviction. He questioned in order to become the best human being possible.”134 He used his queries “to help people gain a better understanding of themselves and their nature and their potential for excellence.”135 As Phillips eloquently describes: “The Socratic Method is a way to seek truths by your own lights.”136

For introverted lawyers who are naturally resistant to the law school version of the Socratic Method, which requires participants to engage in instantaneous public discourse about complex legal topics without much time to think and process, studying exactly how Socrates’ original method worked can help alter our perspective and better prepare us to handle questions. Although the Socratic Method in the law classroom or courtroom can be intimidating for the questionee, Socrates reportedly was kind in his inquisitions, even as he gently exposed flawed assumptions and intellectual contradictions. Scholars refer to the technical logistics of the method as elenchus, “Hellenistic Greek for inquiry or cross-examination.”137 Again, while modern courtroom or deposition cross-examination can at times be grueling or embarrassing for the witness, Socrates was a benevolent inquisitor. Ronald Gross, author of Socrates’ Way, summarizes the method in the following chronological steps:

Phillips outlines Socrates’ method similarly:

Here is an example of a Socratic inquiry, exposing assumptions, embedded concepts, overbroad generalizations, exceptions, contradictions, and flawed logic:

Q: Can a naturally quiet person be a great lawyer?

A: That seems contradictory. Lawyers are outwardly intelligent, confident, like to debate, and have a lot to say.

Q: If someone is quiet, does that mean she is not intelligent?

A: No, but lawyers need to talk to do their jobs.

Q: Are there any parts of a lawyer’s job that do not require talking?

A: Yes. Reading. Listening to a client’s story. Researching. Writing a contract or a brief. Outlining an argument.

Q: Are these quiet tasks important to lawyering?

A: Yes.

Q: What does it mean to be a great lawyer?

A: Winning cases.

Q: Are there any circumstances in which a lawyer that wins cases is not great?

A: I guess if he is unethical in how he won the case.

Q: Any other circumstances?

A: If he didn’t listen to the client’s wishes, or treated his team poorly.

Q: Are there any circumstances in which a lawyer can be great without winning cases?

A: Well first, there are a lot of transactional lawyers who don’t do trials that are great lawyers.

Q: And why are they great?

A: They listen to their clients, obtain agreements with other parties, and write good contracts.

Q: Can a lawyer who loses a case be great?

A: I suppose.

Q: How?

A: If she did the best job possible with difficult facts or law, worked hard, and brainstormed creative solutions. Even if the solutions didn’t work in the end, I suppose the lawyer still did a great job for the client. And maybe paved the way for a future change in the law.

Q: If a lawyer is quiet, does that always mean he doesn’t have a lot to say?

A: Not necessarily. I guess it could mean he is thinking.

Q: Do great lawyers think?

A: Of course, yes.

Q: If a person is quiet, does that always mean she is not confident?

A: Not necessarily. It could mean she is thinking about how to respond powerfully to an argument.

Q: Have you ever had a debate with a quiet person?

A: Actually, yes. It was with a close friend I have known forever.

Q: Was the debate superficial or deep?

A: Pretty deep. My friend doesn’t say a lot when he’s in large groups, but when it’s just the two of us, our conversations can get pretty heavy.

Q: Are there occasions in which lawyers interact one-on-one or in small groups rather than large groups?

A: Yes, in client interviews, depositions, negotiations, some oral arguments …

Importantly, even while revealing “discrepancies, contradictions, and consequences”141 in a dialogue, which possibly could trigger embarrassment, shame, or defensive pride causing a communicator to shut down, Socrates “made the people he questioned, and cross-questioned, feel important, and he seemed to find their answers valuable.”142 When he interacted with others, he showed “courtesy, patience, sensitivity, and calmness.”143 He “rarely if ever snapped” in a conversation.144 Phillips describes the original Socratic dynamic as:

a paradigm of communication that calls on all participants in a dialogue to participate fully, and in an egalitarian way. And it requires that participants help one another articulate and then examine their perspectives, as well as the implications for society of these perspectives, and the assumptions within these perspectives.145

This type of thought exchange sounds lovely, inviting, and collaborative, and different in tone from the Socratic Method I feared in law school and still observe in some classrooms, conference rooms, and courtrooms. Socrates aspired to be an excellent human being. To him, excellence meant “striv[ing] to acquire certain virtues, such as temperance, courage, and wisdom. Why? Because the acquisition of such virtues creates a different kind of wealth—a wealth of empathy, of imaginative vision, of self-discovery.”146 So how did we evolve from Socrates’ aspirational methodology to the way a Socratic interaction often transpires in the legal world now?

QUIET LAW STUDENTS AND THE MODERN SOCRATIC METHOD

Of course there are exceptions—every law professor has a personal style, and many are nurturing and encouraging to all students—but the traditional law school method of classroom interaction, governed by the Socratic Method, pressures students to act like extroverts. Numerous law school lecture courses are managed by an intense Q&A in which professors—often intimidating because of academic pedigree, tenured status, intellect, or tone—choose a student either through an alphabetical process, a seating chart, or at random (“cold-calling”), and then question the student about a precedential case, a legal rule, or a public policy concept from that day’s assigned reading. The inquiry might focus on a jurisprudential theory, elements or factors of a governing rule, a court’s decision, the bases for such decision, and how that result might change in various hypothetical scenarios. Students have little time to think. Professors expect immediate responses based on the assumption that the student on-call has completed the assigned reading and prepared adequately for class. Notwithstanding even the best efforts of a caring professor who is attuned to internal and external influences that can affect classroom temperament, the overall tenor can be competitive and judgmental, especially in the 1L year, when students feel pressure to jockey for grades, class ranking, interviews, summer jobs, and promotion to law review and moot court teams, but are not yet sure where they fit. For a new 1L law student struggling to find her lawyer voice, some law classrooms do not readily offer a collaborative dynamic of “participants help[ing] one another articulate and then examine their perspectives,”147 as Socrates designed.

Further, unfortunately, not all law professors embrace Socrates’ humble acknowledgment of not knowing themselves, and instead seem, in the students’ eyes, to know everything, at least about Contracts, Torts, Property, Civil Procedure, Criminal Law, or Constitutional Law. As Phillips describes: “While today’s academic elite ballyhoo their ‘Socratic heritage’ at every opportunity [Canadian novelist and essayist John Ralston Saul] holds that ‘the way they teach’ is the antithesis of the Socratic way. ‘In the Athenian’s case every answer raised a question. With the contemporary elites, every question produces an answer.’”148 Gross also acknowledges that “in the wrong hands, the Socratic Method can be abused.”149

Some law professors regard the Socratic classroom technique as a rite of passage every student must endure, without sufficient and transparent accounting for differences in individual students’ abilities to process challenging legal concepts extemporaneously, speak spontaneously in a new legal language before a large number of peers, or stay cool under pressure when stumped. At some point during a Socratic query, despite dogged preparation, a student might not know the answer to the professor’s question, or stay calm enough to articulate an answer that is still gaining traction in his mind. But instead of fostering an environment in which we overtly acknowledge that we all have limits to our knowledge—as Socrates did—law school classrooms often unwittingly can create a dynamic of shaming a faltering student. Professors feel pressure to cover the scheduled amount of material during each class period and can become frustrated with hesitant responders, sometimes jumping to the mistaken conclusion that the reticent are unprepared, less capable, or just not ultimately tough enough to withstand legal debate. Introverted, shy, or socially anxious students who stumble during a Socratic Q&A worry they are perceived as less intelligent than their peers. Quiet or hesitant law students can be misjudged by professors and contemporaries (or even themselves) as ill-equipped for the practice of law—a serious misperception.

In law school, the professor standing at the podium logically expects an answer within seconds, or at least a minute or two, to keep the class session moving forward. While extroverts comfortably shape budding answers by speaking aloud, our traditional American style of legal instruction does not allow room for the typical introvert’s most effective mode of learning or analytical processing: deep internal thinking rather than spontaneous volley. While the law school version of the Socratic Method inhibits and discourages contemplative pauses, Socrates himself was “a slow, careful thinker.”150 He took time to ponder, and considered himself a cogitator.151 In fact, his “insistence on clarity frequently revealed that the people with the instant answers hadn’t really thought things through.”152 Introversion author Tanner reverberates this theme: “Words do not have to be spontaneous to be heartfelt and real.”153

Experts confirm that introverted students use different processes than extroverts for learning154 and digesting complex information. Cain emphasizes that “[i]ntroverts need different kinds of instruction from extroverts.”155 She quotes education scholars Jill Burruss and Lisa Kaenzig as saying, “[V]ery little is made available to that learner except constant advice on becoming more social and gregarious.”156 Like other forms of American education, the law school instructional model mandates class participation in a manner that runs contrary to the introvert’s nature. As Dr. Kozak points out: “The value of participation is so deeply woven into the fabric of academic life that it goes unnoticed, and introverts become the collateral damage.”157 Professor Katherine Schultz, in her Washington Post article, “Why Introverts Shouldn’t Be Forced to Talk in Class,” writes: “There are potentially grave consequences for students when teachers do not understand their silence as a form of participation … [S]tudents who are silent might receive low grades for classroom participation, when in fact they are actively engaged in learning.”158

Consider this example of a quiet law student: She spends most evenings burrowed in a library carrel with a highlighter and a casebook (or four). She underlines rules, outlines rule components on notecards, and contemplates their underlying structure and interplay with public policy. She identifies the key legal issues addressed in each judicial opinion, extracts the elements of the governing rule, discerns how the court applied the rule to the particular case facts, and ascertains the court’s reasoning behind its ultimate decision. Having sat through weeks of class already, she has monitored and detected a pattern in her professors’ lines of questioning, and invests time anticipating the flow of queries that might befall her if she is cold-called in class. She brainstorms possible hypothetical adjustments to each precedent case’s facts so she can flexibly maneuver in a dialogue.

Armed with bullet-point outlines, today this student walks into the classroom, shuts down her cell phone and social media, and slides into her assigned seat, poised to capture another day’s worth of notes. As class commences, the professor scans the crowd. He calls her name. Her number is up. The Socratic questioning begins. Her nerve endings sizzle. The answers to the professor’s inquiries reside within the scrupulous pages arrayed on the desk in front of her, but her brain stalls. Perspiration trickles. A blush starbursts. Her voice quivers. Row-mates shuffle in their seats. Seconds tick. The professor’s next move can have an enormous effect on this student’s psyche. This student is über-prepared, but this encounter—if it ends badly—can be detrimental to her learning process and future study habits. Imagine if a momentarily stumped law student could simply say, during a Socratic dialogue, with all eyes on her, “I just need a minute. I’m thinking.” But she can’t.

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Another law school initiation rite is the 1L oral argument. Most three-year American law school programs include a mandatory oral argument at the end of the first year as the final assignment in the legal writing course curriculum. Students write a persuasive legal brief, and then are paired against an opponent to present time-capped oral arguments on opposite sides of the same complex legal issue. A panel of three judges—often professors, law school administrators, members of the school’s moot court team, alumni, or other distinguished guests—interrupts the student-advocates and peppers them with questions, to test the strengths and weaknesses of the opposing positions. The oral argument experience is wildly different from delivering a prepared speech. In oral advocacy, the orator might have crafted a riveting roadmap and a cogent argument outline, but the unexpected timing, flow, and subject matter of the judges’ questions can derail the speaker’s control. For introverted, shy, and socially anxious individuals, this exercise can be torturous. There is no time to think, reflect, or process. During this time-sensitive rite in which a “bailiff” counts down the minutes using a timer, warning flash cards, and a stop sign, judges would stare quizzically if the student at the podium paused for a long moment (in the style of John Cage, from Ally McBeal) to craft an eloquent response in his head.

Some professors integrate shorter oral argument assignments into regular class sessions. In creative pedagogy workshops, colleagues enthusiastically have shared that they start off the semester requiring their 1L legal writing students to periodically perform 90-second arguments on topics randomly selected from a hat. I listen to these eager colleagues opine, “It’s great! It totally forces the nerves out of their systems,” and I wince, knowing that for at least a few students on each classroom roster, this command performance so early in the law school experience—without sufficient training or room to find one’s voice first—effects exactly the opposite result. I also have heard legal educators urge nervous students to “just get over yourselves.” In turn, I beseech teachers to understand that the “just do it” approach does not, and will not ever, eliminate nerves. Hesitant speakers first need to understand precisely where their reticence toward this type of interpersonal engagement is coming from (possibly, natural introvert resistance to speaking without preparation or in an interruption-based dynamic, or deeper-seated fears of judgment lurking in shy and socially anxious students) before they can make conscious mental and physical adjustments and leap into the fracas with purpose. Not every transformative lawyer is a born talker. Countless attorneys joke about how their families knew from their toddler years that they would enter the legal profession due to their natural affinity for argument and bold assertions. Plentiful powerfully quiet advocates never exhibited those childhood behavior patterns. Many of our pensive students have a lot to say and care deeply about legal issues, but they first require space to let their thoughts about the law incubate until they are ready for prime time. These law students, as Socrates and the Seven Sages counseled, need permission to “know thyself” first while they get to know the law.

Phillips, who convenes Q&A gatherings called Socrates Cafés159 throughout the world, notes, “I never put anyone on the spot and make them feel like they have to talk. You can participate just by listening. In fact, I find that some of the most active participants at Socrates Café are often those who ‘just’ listen.”160 In law school, we do not always honor our students who “just” listen, at least not enough. In fact, some law school grading structures directly incentivize class participation and performance-oriented events, favoring extroverts who comfortably engage in class discussions, group work, simulated client scenarios, and mock arguments. Cain confirms this partiality toward talking over listening in other academic arenas: “We perceive talkers as smarter than quiet types—even though grade-point averages and SAT and intelligence test scores reveal this perception to be inaccurate.”161 Cain’s research indicates that, “[a]t the university level, introversion predicts academic performance better than cognitive ability”162—not necessarily because of a higher intelligence level but rather a greater tendency toward careful thinking and persistence.163 Law schools track correlations between undergraduate GPAs/LSAT scores and law school performance/bar passage rates; it would be interesting to track connections between results on the Myers-Briggs Type Indicator® (MBTI) personality inventory (which can unveil deep insights into personality preferences including the introversion and extroversion dichotomy)164 and law school success.

In our law school classrooms sit smart, quiet, serious thinkers who have much to contribute—when they are ready and after they have had appropriate guidance in how to communicate in their authentic voices. Forcing introverted law students into extroversion triggers anxiety and promotes further censorship. Such internal conflict can have deep psychological repercussions. Cain’s research reveals that “introverts are significantly more likely than extroverts to fear public speaking.”165

Some professors might suggest that “if these students don’t or won’t like oral debate, then maybe they shouldn’t be in law school.” I could not disagree more. Law school should not be an assembly line of loquacious, verbally slick extroverts. We need to make room for the quiet and empathetic writers and thinkers, and for the internally methodical analytical minds, even if they require additional support and training to learn how to express themselves aloud. For these students, we need to invest time and energy in transparently explaining the context and purpose of the Socratic Method and oral arguments, and model their patterns and rhythms (and examples of normal hurdles, pitfalls, triumphs, and joys), before thrusting students into these types of performance-oriented events. Such contextual explanations only require 10 or 15 minutes of class time but can achieve great strides in helping students understand how to (1) best prepare substantively, mentally, and physically, (2) realistically (rather than exaggeratedly) visualize the event, and (3) manage challenges. We must exhibit empathy to students who experience anxiety toward and during these scenarios, and help these individuals navigate these engagements successfully (emphasizing that obstacles and glitches are standard—conversations about the law can and should be messy!) so their ideas about legal concepts can take root and bloom. We also need to make it acceptable to admit vulnerability and fears in an educational setting, so we can transform perceived “weaknesses” into powerful strengths in real law practice.

Overall, when we encounter quiet students, we should consider whether they (1) are introverts who learn, process thoughts, and communicate ideas in a different way; or (2) have experienced certain adverse life experiences—perhaps through historical criticism or judgment from others, or a single traumatic event—that imbedded negative messages about their capabilities, which have become further entrenched by intimidation in the law school environment. Many individuals are trying to learn and eventually practice law while battling personal demons, reinforcing messages of meritlessness and shame. Forcing introverted, shy, or socially anxious students to engage in an aggressive Socratic dialogue, interact with intimidating professors before an audience of ambitious peers, or leap into a confrontational oral argument experience (the “just do it” mentality)—without appropriate context, encouragement, and support—will never enable them to “snap out of it.” The situation will worsen. By forcing the quiet students to “fake it till they make it” (or maybe not make it), we ignore their authentic potential and further censor these impactful legal minds.

Cain provides sage advice to educators: “If you’re a teacher, enjoy your gregarious and participatory students. But don’t forget to cultivate the shy, the gentle, the autonomous, the ones with single-minded enthusiasms for chemistry sets or parrot taxonomy or nineteenth-century art. They are the artists, engineers, and thinkers of tomorrow.”166

QUIET LAWYERS

Like the law school classroom, in many law office environments, the large personalities can dominate. Rainmakers and glad-handers command a presence, filling space and airtime in meetings, conference calls, negotiations, and depositions. Law practice encourages and promotes the extrovert ideal. In my experience, working for over two decades at three different law firms, the hard-charging and sometimes even rude, obnoxious, disrespectful, and occasionally verbally abusive partners were not reprimanded; they were promoted, compensated, and protected as the “eccentric rainmakers.” In the three law firms (medium, large, and small, respectively) in Washington, DC and New York City where I worked, three highly successful male partners hurled office supplies across a conference room, screamed at assistants and paralegals, and ranted at associates if they didn’t “have their heads stapled to their desks.” No one blinked an eye.

Of course, many law offices offer collaborative working environments conducive to positive personal and professional development. But the reign of extroverted personalities permeates many venues in American legal practice, even in constructive and healthy workspaces. In depositions, the loudest and most incessant objector necessarily commands attention. In mediations, the showman litigators can distract from the crux of the case. In negotiations—either live or in conference calls—the dominant voices can drown out the softer ones. As Socrates scholar Gross points out, the aggressive voices are not necessarily the most grounded in truth, but in the legal context, we often perceive them that way:

We all have been brought up and educated with the “adversarial” model for resolving disputes. This model, based on our legal system, assumes that the truth will emerge through the most vigorous combat between advocates of opposing positions … The adversarial model favors the bigger, stronger, louder champion, regardless of his or her views.167

Logically, in law practices governed by the billable hour—for many lawyers, recorded in six-minute increments—meeting leaders might “value instant responses over well-thought-out ones that take a little longer.”168 Driven by ambition to propel a case forward, beating rather than meeting deadlines, and litigating proactively instead of reactively, a lead counsel on a case might misjudge the quiet researcher who will not quit hunting until he finds the one case that changes the whole tenor of a brief. The silent brief-writer who plods through transcripts and precedent to craft an advocacy piece that could hew an advancement in an area of law might sink below the radar at bonus-time. In case strategy meetings, extrovert voices can rule, and the introverted thinkers can fade into wallpaper. Additionally, like in any industry, extroverted lawyers publicly share their triumphs and achievements more than introverts do.

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So given this backdrop, how can introverted law students and lawyers best contribute to the legal profession without compromising their health and mental well-being? By embracing the Seven Sages’ mantra: “Know thyself.” By truly understanding ourselves as quiet students and advocates, the ways that we learn and process information differently from extroverts, and the specifics of circumstances that spark our individual interpersonal anxiety, we can construct strategies to maximize our innate strengths and tackle our vulnerabilities. In tandem, forward-thinking law professors and law office leaders—like great athletic coaches—can foster an inclusive learning and training environment in which both extroverts and introverts can excel. The key to this transformative approach is modeling empathy and intellectual humility.