'The Shot Gun Approach'

Those who have been studying or practising the law for a considerable period call it 'working smart' and not 'hard', I call it 'the shot gun approach'! It is understood in various ways, but the general and principal inference that can be drawn therefrom is  one of optimising the amount of work that one does in a limited time. To disclaim, there is also the slightly diverging understanding of answering a question by stating every ounce of knowledge that one has about the subject-matter of the question. This shows a lack of understanding, sloppiness and 'guess-work'. This understanding shall not be the focus of this post in that nothing positive can be written about, by analogy, recklessly shooting down a large group of similar-looking people in the hope that one will manage to hit the right one.

It is true that there is indeed a much better alternative to fastidiously spending day and night covered in bulky law reports and it is also true that one must understand oneself in regard to one's own capabilities, comforts and interests. The shot gun approach is a latent and underlying approach that pervades most, if not all, law schools and indeed the profession. The question to be asked is: Why spend five hours reading a case if you can do it in just two? Perhaps it is not as simplistic as I make it out to be, but the fact is that in whatever material that one reads there must be a scraping-off of the irrelevant periphery and a proper grasping of what Professor Garth Abraham calls 'the penumbra'. Put differently, fundamental principles, relevant to a certain set of facts, are what ought to be sought after and anything ancillary thereto can be placed in the proverbial 'back-burner'.

Many of my predecessors have mastered this and none of them express any misgivings about it. However, when one critically analyses their responses and the approach itself one can easily see a possible shortcoming of the approach which may not necessarily be, on the face of it, detrimental to their studying of and development within the law. If we can agree that there are many legal skills (ie: analytical ability, reading faster,etc) which one  may acquire through reading and/or analysing a written text, then it obviously becomes rather difficult to understand or accept that one is able to acquire as many skills using the shot-gun approach. The acquisition of skills does not occur only when reading 'relevant' or 'essential' parts of a piece of writing, but also when reading irrelevant parts. For instance, reading everything but the essential principles of a judgment allows one to learn many things such as: legal reasoning, the proper articulation or expression of thoughts and ideas on paper and reading quicker with more precision.

It seems, to my mind at least, that the point is that one should not spend any more time than is absolutely necessary reading or working on something which will in no way contribute to his or her juristic learning and development, by way of skills. However, one should also be careful not to unduly truncate the reading or work which will allow him or her to acquire the necessary legal skills, as explained above.

Frank Talk
Tshepo Mothulwe

Perfecting One's Skill

Talent and intelligence are only the cogs in the broader machinery of the legal mind and to think otherwise is naive because a person who does not read and analyse the stacks of law reports, legal journals, textbooks or any such academic material to prepare for an exam will not have his or her intelligence acting his or her panacea. It is common cause that nobody is born with complete, or even remote, knowledge of the law and therefore one must acquire such knowledge through infinite reading of various legal material. Being intelligent or smart is irrelevant for purposes of studying and/or practising the law in that both studying and practising law effectively is a skill which one hones and polishes over a period of time. The law student develops better study methods, analytical qualities and styles of writing as he or she progresses through law school.

During the previous academic year he or she spent hours summarising cases and texts from textbooks, but this year he or she does the same exercise in half the time. Furthermore, his or her arguments are crisper and more thorough and astute. This is all through practise in that the student fails several times on each aspect before he or she progresses further and without such practise the student cannot improve and advance to the next level.

One must constantly hunger for more than what the average jurist does or achieves and this has to manifest in the desire to constantly better oneself. For, if it is evident that the culmination of knowledge (legal and extra-legal), skill, talent and discipline is a fine legal mind then it cannot be that one relies only or mainly on one's intellectual ability. Many, if not all, of the seasoned professionals, this includes all legal practitioners, have developed and are continuing to develop, their abilities (legal and otherwise) over a period of time. There simply is no 'instant success'!

The lawyer develops better negotiation skills, jurisprudential reasoning, ability to make sharper arguments as he or she advances further in the legal profession. During the previous financial year the lawyer lost eight cases, R2 million on a deal and he gave legal advice that was somewhat sloppy, but this year he or she wins twenty cases, makes R500 million worth in deals and most of his clients can't help themselves but to shower him with praises for, inter alia, the legal advice which he or she has given to them. It is a gradual process and one must fastidiously and concertedly devote the bulk of his or her time in developing and perfecting one's skill. It is a skill to make cogent and astute legal arguments and this has, broadly speaking, nothing to do with intelligence or talent. It is well accepted that some people's personalities or talents make them fearless, confident and bold but to be fair this has very little, or no, influence on one's skill. The loudest and most confident jurist is not necessarily the most skilled in that there are many other aspects of this skill than just being loud, namely, legal writing, analytical and logical thinking and jurisprudential reasoning.

Suffice to say that one's work ethic must be refined and matured because it shall prove to be the vital key to unlocking and harnessing one's legal skill.

Frank Talk

Disclaimer: If I have had a conversation with you about any of the issues that are debated on above, this is not by any means a response or retort to what you may or may not have said during such a conversation. It is an expression of my own views which may or may not have been inspired or encouraged by any interaction between you and I.

Bad Legal Habits

It is an accepted norm that a legal mind is one that is technical, analytical and sometimes boastful. Moreover, a lay person may perceive such pedantic behaviour as 'unnecessarily trying to be difficult or stubborn' but to the lawyer this has nuances of thoroughness and precision. It is indeed impressive to perceive and perhaps that is one of the reasons lawyers are the luminary figures that they are. What is undeniably true is that the exercise of both studying and practising law is a simple one, or rather is one that is fundamentally premised on simplicity.

This is evident in legal exercises such as problem solving, simplification of legal rules and principles and concision in both written and oral arguments. All of this is founded on the value of practicality and it is inconceivable that such a term can ever be divorced from any jurist's methods of thought and practise. However, lawyers have many bad habits and for purposes of this post it is prudent to focus on them at student level.

Second to practising law, lawyers also sometimes engage in the art of obfuscation, whether intentionally or unintentionally is neither here nor there. This is when you may think you have explained something in the most simplest way possible, but instead you have filled your explanation with expansive language, rhetoric and ambiguity. To your defence, it may seem at times that ordinary, general and 'everyday terms' add no texture and depth to your writing and/or oral speech. However, in my own view, the exceptional lawyer is one who is fully understood the first time without having to paraphrase, further explain or elaborate.

Many a time you hear law students repeating the words, 'so what I am trying to say is...' or 'so my point is..'. It is repetitive, tedious and flimsy. This may or may not occur in one's pursuit of expansive or impressive language that he or she wishes to use to illustrate a point. I am often guilty of such behaviour and it is definitely something that is prevalent throughout many law schools and the profession at large.

During debates and arguments lawyers, and this may very well be common to all people, have a habit of viciously lashing out to the opposition especially when attempting to rebut a certain point. It is something of a 'tongue lashing tendecy' that aims to completely destroy the opponent, argumentatively of course. If the opponent has made an argument that you don't agree with you respond by saying the following: 'what an outrageous, irrational, foolish and reckless argument' and if the opponent is not argumentatively destroyed after such abrasive and demoralising words being used against him or her then he or she must either be extremely resilient or slowly dying inside. This is the lawyer at worst, but at best he or she might just say that the asserted argument is impractical or untenable.

To many these may seem prima facie as impressive skills and ability, but they are actually the mark of a poor lawyer who perennially sees the need to crack the proverbial whip in order to make his or her point. This speaks insecurity and desperation and it is, to my mind, disappointing when one has to go to such great lengths to make a strong argument.


Frank Talk

Disclaimer: If I have had a conversation with you about any of the issues that are debated on above, this is not by any means a response or retort to what you may or may not have said during such a conversation. It is an expression of my own views which may or may not have been inspired or encouraged by any interaction between you and I.

    

Elitist Idealists

It is common cause that not everybody at the Oliver Schreiner Law School will get 'straight As', as it were, or graduate cum laude. Furthermore, not every law student will achieve 'Deans merit list' or 'Golden Key' status. It follows that we are not equal in intellectual capability. At first year level every 'witsie' starts on an equal footing and in hindsight one can say that it is perhaps better to remain naive, juvenile and 'equal' because when one starts earning some credilbility the demarcation begins.

This is the inconspicuous division of the class or calibre of law students within the law school. It is as if some imaginary authority waits at the entrance with a stick with which he separates the long file of students.  The brillaint bunch is separated from the 'struggling bunch' and from this moment each of the two factions' career paths are effectively set out. The latter is likely to struggle to find suitable employment at the end of his or her time at the university, while the former will have tea and scones in a lavish office in Sandton. One cannot argue either of their cases on the ground of 'who is more deserving' because it is an embarassingly flimsy basis to use. Notwithstanding the fact that hard work fosters a just reward, many have quadrupled their efforts and still they have come second best against the brillaint bunch. Does this mean that they are less deserving of the same, or at least some of the benefits that the brillaint bunch receives?

For instance, if we were both painters that worked independently and you could paint a masterpiece in a fraction of the time that I would use to paint something that is average, would it be fair or reasonable to conclude that you were more deserving of any accolades or benefits that acrue to outstanding painters? Put differently, it is a question of effort versus natural ability.

My intention is not to cast aspersions but what is unacceptably irritating is when someone from the 'brilliant bunch' adamantly and vehemently argues that if he or she can achieve, inter alia, good marks then anybody else can do the same. One cannot adversely criticize the intention behind this. That is, to encourage people to perform better by placing oneself in a position of inferiority in their minds thereby creating the belief that 'if he or she can do it then so can I'.

However, it cannot be correct to apply the 'one-size-fits-all' approach in this particular instance because the process of achieving good grades is a very complex one mainly because people are so different and this is partly proven by the fact that one may work three times as hard on something and not receive the same grade as somebody who started and completed the particular task in a matter of hours. Therefore, the patronising assertion that attempts to equate the 'struggling bunch' with the 'brilliant bunch' by one saying that 'If I can do it, then so can you' is most unaccptable.


 Frank Talk

The Modern Eclectic Lawyer

The Modern Eclectic Lawyer

During the times of the Roman Jurists a legal practitioner was a  just that, a legal practitioner. Moreover, the Roman Jurists did not voluntarily charge for the services that they rendered to people. In contrast, today's attorneys generally bill approximately R1500 by the hour and this amount may vary depending on the type of matter that they are being called upon to deal with. Notwithstanding the different economic climates, this is possibly because the modern lawyer is prepared quite differently for the profession than the Roman jurist. An aspiring Roman jurist had to engage in a very practical apprenticeship programme where he(only males were allowed to practice law) would 'shadow', so to speak, a practicing jurist for a prescribed period.

  The modern lawyer, however, is truly an eclectic creature in every sense of the word. He is a philosopher, an economist, a politician, an academic, an administrator, a businessman or woman, an artist and an entertainer, just to name but a few. If one takes a gander at the judgements that are written by many modern judicial officers, particularly those of the Constitutional Court judges, there are conspicuous nuances of, inter alia, philosphical and political reasoning. This is not to say that there is a lack of legal reasoning but there is a mastery blend of elements from various academic fields including the legal professon.

The legal profession provides one with the mandatory skills which one would need to be a practicing lawyer but the world class lawyer is one who has, in addition to the skills that he or she has acquired from the legal profession, skills from other academic, sporting, social and philanthropic disciplines.
Such a lawyer is: a leader, linguistically impeccable(both orally and in written form), disciplined, visionary, innovative, luminary, meticulous and persistent. This is what many would call a 'well polished diamond', as it were, that has been meticulously prepared for the legal profession. This is likely to continue as time goes on because in South Africa, nevermind the world, the legal profession is saturated. By this I mean that there is an overflow of legal practitioners and this makes for stiff competition amongst aspirant jurists.

If I know how to draft a contract but you know how to draft a contract and how to run a business successfully, then I shall surely come last in our race for suitable employment. This is the same if I know the law to the letter and you sufficiently know the law and some African philosophy. The bottom line is that the better, or rather the more flexible and dynamic one is from both a knowledge and skill perspective the more suitable or better-placed he or she becomes as a lawyer.

Frank Talk

Survival of the fitest: Law students scramble for top jobs

It is common cause that South Africa is not in need of any more lawyers. The industry is saturated with lawyers and this makes for tough competition between job applicants in law firms. It is apparent from many legal practitioners that South Africa is in need of quality artisans and actuaries, just to name but a few. The corollary is that only the cream of the crop will make it while the rest look for employment either in different industries or for menial jobs within the legal industry.

This is most definetly a tough reality to face as law students and to further exaccerbate the situation the Centre for Development and Enterprise published a report in 2008 that illustrated, in various forms, that 65% of university graduates in South Africa are unemployed. One must put himself or herself in a position where he or she is an attraactive candidate for purposes of employment and this effectively means that a mere university degree is simply not enough to secure a person a job in today's ecnonmic climate.

Frank Talk
Tshepo Mothulwe