Each fall, a new group of students arrives at my law school, filled with excitement, ambition and intelligence. Preparing them to be successful attorneys is a herculean task. When I first became a law professor, I thought the challenge lay in ensuring students learned as much as possible across many areas of law. Now, I realize that the greatest challenge is helping them let go of their assumptions about the nature of good lawyering. Indeed, much of teaching first-year law students is opening a proverbial window and shooing out “A Few Good Men,” “Legally Blonde” and “My Cousin Vinny” (even though I admit to loving all three).
One of the hardest lessons for students to grasp is that good lawyers don’t succeed by fixating on what the opposing side is wrong about. Instead, they succeed by understanding what the opposing side is right about and discerning whether and how their client can still prevail. It is an endeavor that requires careful analysis. Adjectives don’t win cases. No lawyer has ever won in court by labeling the other side “stupid,” “problematic” or “naïve.” Instead, lawyers win cases by amassing as many strong facts, law and policy arguments as they can and transforming them into a vision of justice that a court will embrace.
Confronting an adversary’s strengths is never an easy task. It requires open-minded consideration of arguments with which you may deeply or even passionately disagree. It demands intellectual and emotional discomfort. But it is this ability to think clearly amid discomfort that makes an attorney excellent. It is also an ability that is becoming increasingly rare among otherwise brilliant students.
At first, I thought it was me. I worried that I wasn’t building enough trust in my classes. That I wasn’t creating a comfortable environment for difficult conversations. That I hadn’t adequately explained the task. I kept urging students to acknowledge the strengths of the opposing side but was often met with silence. I even briefly entertained the thought that the students themselves were at fault — that they lacked critical thinking skills or weren’t paying attention. But doubting younger generations is a habit I try to avoid, so I kept searching for the reason.
One morning, I had a revelation. As I stood there asking students to engage with a controversial legal issue and getting little in return, I scanned their body language and realized I was seeing something I hadn’t considered: fear. Suddenly, it all clicked.
These were students who had grown up in a world of highly partisan news, increasing political extremism and zero-sum political activism. No matter what side of the political spectrum my students fell on, they had come of age during a time in which the most minor of deviations from political orthodoxy, the most well-intentioned questioning of the cause, and the most benign of slip-ups could be cause for immediate and harsh condemnation. In their view, I wasn’t asking them to practice good lawyering, I was asking them to commit a cardinal sin.
In the years since, I have tried my best to mitigate this fear, but I’ve also realized this isn’t just a law student problem, it’s a national problem. I’m no longer only worried about the future of the legal profession; I don’t know how we can succeed as a democracy if we are terrified to engage in good faith with the merits of one another’s arguments. How can we foster progress if our best and brightest are paralyzed by the thought of carefully examining alternative perspectives?
The phenomenon that I’m seeing in my classroom is a more serious and existential threat than the lack of bipartisanship in Washington, congressional gridlock or an election cycle gone mad. It’s a phenomenon that threatens progress in every sector of our society.
We cannot possibly overcome the significant challenges we face if we lack the ability to acknowledge the very basic truth that our particular side doesn’t have a monopoly on truth.
As a voter, my focus isn’t on “defeating” anyone. Instead, I want to set up our democracy for the highest possibility of success by electing smart and open-minded people who are committed to solving problems rather than scoring political points. Most importantly, I want to restore political civility, reinvigorate our commitment to a marketplace of ideas and create an environment in which my students — and all young people — feel encouraged to discuss and consider different perspectives rather than face backlash for doing so. Join me. The success of our nation depends on it.
Tracy Hresko Pearl is a native Marylander and the William J. Alley Professor of Law at the University of Oklahoma. Before entering academia, she practiced law in Washington, D.C.