We baby boomer lawyers hate to admit it but we’re getting set in our ways and it shows. Aquarius’ ability to carry water is diminishing. The more experience we acquire, the more we draw on the bank of subjective judgment. Like used sponges, we absorb new information more reluctantly. In fairness, as I stumble to the gates of the legal quarter-century club, I appreciate more and more the physical energy it takes to keep the old lessons of my early career relevant. Aging and exhaustion are, after all, memetic equivalents. It is often easier to discount the value of the new than to figure out what it means. If we were talking about someone other than ourselves, we would call that being intellectually lazy. If it threatens our view of the world, then we can dismiss it as being invalid. When the analytical mind fails, we grab on to a crutch. We call that crutch common sense.
No force is greater in dissipating the intellectual strength of a new generation of lawyers than common sense. In law and politics, lawyers, judges and political leaders use the words “common sense” to justify a way of thinking that requires no further empirical or evidentiary backup. Considered a deep well of anecdotal experiences, it is the domain of the ruling generation, often with failing sight when presented with detail.
Young lawyers, lacking those experiences simply because they have not lived long enough, are accused of not having common sense. If you doubt this, go out, as I have, to a gathering of lawyers and listen to the language they use to explain legal practice. Break into a clutch of millennials just out of law school and you’ll hardly hear those words. Judges, mostly male ones, are always invoking them. Even in Supreme Court judgments, far removed from the muddy trenches, words like “robust and pragmatic” (Snell v. Farrell) are sanitized code for the “I know it when I see it” reasoning behind the obscenity test in Jacobellis v. Ohio . What if you haven’t ever seen it?
Conceptually, common sense is a generationally exclusionary device. It is a construct for the collective experience of the lawyers whom young lawyers are not (read that last sentence over, and you’ll see that it is a simple mathematical “have and have-not” expression). At one time, it was only common sense that the sun revolved around us. Look up to the sky and the horizon, and tell us what you see. It took the empirical reports of reckless world explorers to prove common sense to be wrong, and that the horizon was not the far edge of a flat earth.
If someone qualifies an assertion by saying, “It’s only common sense,” they are really saying, “I won’t bother thinking about it any further.” Even worse, “the client won’t pay for more research (or investigation).” In this context, common sense is really a misplaced application of intuition as a closer to further inquiry, instead of an opener. Common sense can also be intuition cut off by budgetary exigencies or lack of imagination. It can be an excuse to discount the value of expert evidence which goes against what we learned in high school science, so many years ago. Intuition, the purest logical form of past experience predicting the future, works within four percentage points, 19 times out of 20.
Women also dismissed as lacking common sense
Although not always so, the equation of intuition with common sense is a pastime of men. Remember “women’s intuition”? A frequent dramatic device in 1940’s film noir, this female version is a male construct and finds its heritage in the supernatural and the fear of smart women. Women are said to have a knack for finding facts that don’t make sense — at least to men. Perhaps in shared opposition to common sense have women and the young been politically allied, even though women have been around as long as men and the young were, literally, born yesterday. Students of the exodus of women from the legal profession, such as Barbara Annis, point out that many disagreements arise from men and women drawing on distinct wells of experience. When an older male lawyer dismisses something one of his female colleagues has said as lacking in common sense, he may not know he has told her his experience is more important or valuable than hers.
War stories in professional education: Mentorship or junk food?
In law, new lawyers have, to their credit, recognized this problem and have opted to buy the experiences of their elders. In survey after survey, continuing education providers hear that young lawyers want more practical tips from senior practitioners. Practical tips are procedures not found in law books. But history tells of rivers of blood spilled to ensure the legal practice does reside in law books, and not in the oral histories of men.
In response to the demand, what you will actually get are a lot of war stories. Some are good war stories, although mostly we judge them not for what they teach but how much they make us laugh. But most of the stories that are funny defy ordinary life experience. In this way, institutionally we teach common sense in the law quite often by what it is not. Whether we learn anything this way is another story. Most modern adult educators will tell you that we learn best from doing, as in the articling experience and working with an office mentor. You, as a lawyer in your first dozen years of practice, will learn most about lawyering from the deals you work on, the families to whom you bring peace, and the lawsuits you handle. In the end, advice from elders is helpful, but you still have to discern how much of the sandwich is good meat, and how much just baloney.
Thomas Paine would not be happy to read this
The most famous appearance of common sense is as the title of an American revolutionary pamphlet by that name, written by Thomas Paine. Paine, apparently, originally wanted to call it Plain Truth. The word “common” would have carried a serious double entendre for 18th-century folk, divided on class lines. To English aristocrats and monarchists, it would have meant the same thing as the word “pleb,” a word now so pejorative that it brought down British parliamentarian Andrew Mitchell, who is alleged to have used it in a confrontation with police. To middle class Americans, the word “common” would have bought into the Enlightenment doctrines of self-evident rights and freedoms of men.
Reading Paine’s Common Sense from a 21st-century perspective reveals that “common sense” meant mostly a mixture of political bluntness with a dash of sophistry. In the latter category, the notion that “It was absurd for an island to rule a continent,” is a classic piece of common sense in that it was an intuitively appealing statement which made less sense the harder you thought about it. Common sense, when transformed from an intuitive tool to a rhetorical pillar, can become nonsense.
The proper role of experiential reasoning: Intuition
Is there a practical side to this mental exercise? Or is common sense a force of nature, like the wind? At the heart of the encounter between the mentor and the mentee, the mentee’s mission (if you choose to accept it) is to consider the common sense statement as a point of departure. After all, that is the proper role of intuition in the logical world. I have lost count of the number of times my initial experience-founded assumptions about a legal matter have been proven wrong or incomplete. In such circumstances, to require others to follow a course down the wrong path could lead to frustration or, even worse, failure. I should not raise common sense as a device to stop my colleagues from investigating the facts or researching the law further.
Common Sense and diversity: The future of the legal profession depends on both
I will leave you with something I recently told one of my children’s friends who was worried about secondary school entrance exams, most of which involve multiple-choice questions. As a former member of the committee that approved the entrance examinations for Ontario’s law society, I learned to see these questions as the psychologists who devise the testing methods. I learned to stop seeing them as a question followed by a correct answer and a series of wrong ones. Rather, there is a “key” and a number of “distractors.”
The key gains access to a mark, and the distractors lead to zeroes. The distractors often appear correct, and in themselves they can be correct answers — just not as correct as the key. The modern multiple-choice question is like a police line-up. If your suspect is of a certain look, you do not choose a line-up of men and women who look different. You choose distractor candidates who are the same sex, race, build, and hair colour as the suspect. If you reflect on this example, you will see how multiple-choice examinations actually do assess real-life competence in a way that the old essay formats do not. I have had many a good debate with naysayers of the new examinations who decry the abandonment of the former bar admission course examinations, mostly on the basis of common sense. One significant advantage of the new method is that it is now possible to fail candidates and defend those decisions objectively.
Among the sensitivities we cultivated for devising the test questions was to see how different generations and ethnocultural groups might consider a good distractor to be a key, and vice-versa. Quite often, from a generational view, some members of the committee would see an answer to be technically correct but would consider another answer to have made better “common sense.” Or they would point to the practice of ignoring certain rules, especially in litigation, thus perpetuating lawyers’ rule-avoidance (undertakings requiring secrecy prevent me from providing any examples from the test). “Common sense” was often code for a solution that would be apparent to a 20-30 year call but not to an entry-level lawyer. However, the technical answer would be more correct for assessing the competence of a new lawyer. Therefore, the correct answer to the question (the key) was often the technically correct answer and not the experientially correct answer.
In law, there is a point at which the experience-based view of a problem is so far removed from the technical answer that we senior lawyers have to admit they are no longer correct at all. If the law office’s precedent banks contain contract wordings whose meanings or effects an entry-level lawyer cannot understand, should it not be clarified before being inserted into the client’s business contract? In every area of practice, we must be watchful of legal work that makes sense only to veteran lawyers. In my area — insurance law — judges are refusing to enforce policy wordings that lay people would find hard to understand.
There is a lesson here: what is common sense to an insurance lawyer might be uncommon sense to the party paying the insurance premium. Then we are in the same boat as the new lawyer, or a member of the general public, in having to go back to specific wording of the statute, rule, or regulation. The law is a great leveller, and the mighty who rely increasingly on common sense to answer legal questions for their clients must be vigilant about keeping their experience current. Currency is the main advantage held by recent calls to the bar, compared to the veteran lawyer. We have to dissect common sense to discover its limitations. Once we do, we see how much we need to embrace the new. We do so, not to threaten the value of past experience, but rather to keep it alive — and to ensure the best lawyers will succeed us.