The Socratic Method is named after the great Greek philosopher Socrates. He is reputed to have taught students by firing one question after the other, questioning their responses and trying to find holes in them and through the questions allowing the students to reach their own conclusions.
The belief was that the Socratic Method would lead the students, vide the use of serious thoughtful perception and use of logic, finding holes in their own theories and then on their own find the answers to their confusion and misperception.
Although most law school students would have undoubtedly taken large lecture courses while they may feel safe and complacent surrounded by 149 other faces, they're going to be a lot more vulnerable to cross-examination by their law school professor than they ever were in undergrad school.
The Socratic method is not new, nor is it unique to law school. In fact, only recently (in the last 100 years; and that, in law, is recent) and only in the United States has the technique been applied to the study of law. Prior to the late 1800s, law was learned through the reading of treatises and commentaries written by judges and practitioners and through on-the-job training.
Here's a brief example of the Socratic method in action: There is a rule of law called "assumption of risk," which holds that if you see a clear danger and go ahead and take the risk of getting hurt, you might not be able to win a suit against the person who created that danger.
There. That's a rule of law, simple and concise, understandable and fair. But the students will find that their torts professor isn't going to recite the rule as it is done here. The professor will try to draw it out of the students and make them figure it out.
Consider this brief exchange:
Professor: Imagine there's a bridge spanning a river. You walk across it and halfway over the cables break. You fall into the water and are seriously injured. What would you do about it?
Student: Sue the owner of the bridge.
Professor: On what grounds?
Student: Negligence. If the bridge was open, the cables should have been strong enough to hold a pedestrian's weight.
Professor; What if, before you crossed, you noticed that the cables were frayed?
Student: 1 must not have thought they were too bad if I crossed.
Professor: No, you thought they were very badly frayed. But you had a vitally important appointment across the river you could not miss. What would the owner of the bridge claim in court?
Student: That I was negligent too?
Professor: Negligence is carelessness. You weren't careless. You were stupid. You saw the danger and decided to act pigheaded. You crossed a dangerous bridge anyway. . . . How would you de scribe what you did?
Student: 1 took a chance.
Professor: You took a what?
Student: 1 took a chance, a risk. . . .
Professor: Ah, a risk. You took a risk. . . . What else might you have done with that risk? Think of a lawyerly word, a big word. . .
Student: 1 assumed the risk.
Professor: Very good.
See how the rule was drawn out by the professor?
In law school, the system will probably work this way: Your assignments will consist of court decisions, usually contained in a casebook in which the author has compiled a number of decisions, each one representing a rule of law that you're to learn.
You'll read these cases-maybe four, six, or eight for each class session-and then "brief" them, that is, write a short synopsis of the cases according to the process described in the next .
You show up in class the next day and prop open your notebook containing the briefs and your notebook for class notes. Then the fun begins.
The professor may give a brief introduction to the topic you are about to cover and then call on a student. Or the professor may simply pick a name and begin the Socratic process cold.
You will usually be asked to recite the facts of the decision and possibly the procedural history of the case as it worked its way through the court system. Once you have finished, the professor may allow you to continue, discussing the rule of law and any other observations you may have made during your reading of the decision.
If you correctly state the facts and the rule of law that the case represents, that might be the end of it. Often, though, the professor will let you recite just long enough until you have enough rope. Then the professor will open the trap door-and start the questioning.
Professors usually ask straightforward queries about the facts and the rule of the law the court selected. Also: "Why?"
Get used to that question. Law school professors love it. Even if you're positive you know all the facts cold, even if you can recite the rule of law in your sleep, be prepared for a professor's ironic glance, accompanied by "But why did the court do that?" Or "Why did the attorney representing the plaintiff bring the case in this court and not another?"
Socratic sessions require you to shift gears quickly It's not unusual for you to be reciting a case when suddenly the professor interrupts you, changes the facts, and asks you to offer what the rule of law might be if those facts, rather than the ones in the case, existed. The professor might state a different legal rule, then ask you to apply that to the facts in the case you briefed for class. You will often be asked to reconcile the decision you have just recited with previous cases.
Here's another example of a Socratic professor at work:
Professor: Ms. Jones?
Student: Yes, sir? Present.
Professor: Stand and tell us about the case of Brown v. Smith.
Student: Yes, well, in this case, a young man . . .
Professor: How young?
Student: Uh, I believe he was 16.
Professor: You believe?
Student: No. He was definitely 16. His birthday was . . .
Professor: That's fine. Please continue.
Student: This young man bought a motorcycle. It was a
Honda 350 . . .
Professor: Is that all he did?
Student: Pardon?
Professor: When he bought this cycle, did he do anything else?
Student: He bought a helmet, he bought a rear-view mirror, he . . .
Professor: How would you, as a lawyer, Ms. Jones, characterize what this young man did at the dealership?
Student: Oh, he made a contract. He entered into a contract.
Professor: Continue.
Student: This young man entered a contract to buy a motorcycle and took delivery. He only paid a part of the price-a down payment. After two weeks, he decided he didn't want the motorcycle any more. He had gotten engaged and his fiancée wanted a ring . . .
Professor: Really? What kind of ring?
Student: Oh. Well, 1 don't know.
Professor: Nor should you. It's irrelevant So is the reason he didn't want the motorcycle anymore. Extract only the vital facts from these decisions, Ms. Jones.
Student: Yes, sir. He told the dealer to pick up the motorcycle and he refused to pay the balance due. The dealer sued him for this money. The court said . . .
Professor: Sued him, Ms. Jones? Sued this poor young man? The dealer had his motorcycle back. Why was the dealer upset?
Student: Well, uhn . . .
Professor: What had the young man done that was so wrong?
Student: I guess the dealer was going to lose his profit.
Professor: That's true, Ms. Jones. But, again as a lawyer, how would you characterize what the boy did?
Student: Oh. He breached the contract.
Professor: Very good. He breached the contract. Please continue with this dramatic saga.
Student: The court ruled in favor of the boy. It said that he was an infant and . . .
Professor: An infant? You said he was 16.
Student: The law defines anyone under the age of majority as an infant.
Professor: And what is the age of majority?
Student: I'm not exactly sure, but 16 is in there.
Professor: Sixteen is in there somewhere, hm?
Student: That's right. Well, the court said that since he was an infant, he could avoid the contract.
Professor: Get off scot free?
Student: That's right.
Professor: Hardly seems fair, does it? Our 16-year-old infant can break a contract with impunity, but a 19-year-old adult can't.
Student: The court said this was a public policy decision. You have to draw the line somewhere. I mean, you can't very well hold a four-year-old to a contract to pay $100 a month.
Professor: In other words, a dealer who sells a motorcycle to a four-year-old deserves what he gets?
Student: Uhm. Tm not sure if that's what 1 mean or not.
Professor: Before we get to public policy, let's return to the question at hand. How would you describe the contract in this case?
Student: Not worth the paper it's written on?
Professor: Please leave the humor, such as it is, in this class to me, Ms. Jones.
Student: It's a voidable contract.
Professor: Voidable. Yes, it is a voidable contract. Now Ms. Jones, you are representing this motorcycle dealer. Not a bright fellow, really. After all, he's sold motorcycles to four-year-olds, right? But even fools deserve good lawyers and you've agreed to take the case. You dig up some facts about this 16-year-old contract-breaker. For one thing, he lives 50 miles outside of Salt Lake City and works in the city itself Commutes every day. He's also an orphan. Does this give you any ideas?
Student: Sure. I'd argue that the motorcycle was a necessary. It's a rule in the majority of states that an infant can't break a contract he enters to buy necessaries-transportation to and from his job, for instance.
Professor: Very good. Now let's change the facts. Let's take your four-year-old. We'll assume his feet don't reach the pedals on a Harley-Davidson, so let's say he buys a tricycle, on time. The same situation.
Student: Does he pedal to Salt Lake City every day?
There you have a typical, if fanciful, example of a Socratic session. Forget the legal principles; get the flavor of the game.
Note that the entire exchange could be summarized by a professor in a lecture as: "Contracts of infants, who are defined by the law as anyone under the age of majority, are voidable by the child. The exception is a contract for 'necessaries,' that is, what the child needs for daily survival."
Some professors who use the Socratic system get carried away and engage in a little verbal whipping, especially if they feel you haven't done the homework. But take it in stride.
Every lawyer in the country has survived the Socratic method of teaching; you will too. Remember too that because the classes are so large, you will not be called on often.
Here's a trick I used frequently: The best way to beat the nervousness in Socratic sessions is to volunteer when you know the answer. This relieves the tension and if you do it frequently enough, you may, depending on your school's grading practices, be able to earn extra credit.
Often professors modify the traditional case approach to instruction. Rather than grilling students, they use assigned cases as points of departure for class discussions in which everyone is encouraged to participate. I found this to be the classroom environment most conducive to learning. It avoids both the tedium of pure lecture and the consuming uneasiness that sometimes accompanies Socratic classes.
