NCJ Number
171966
Journal
Florida Law Review Volume: 48 Issue: 5 Dated: (December 1996) Pages: 841-856
Date Published
1996
Length
16 pages
Annotation
Tort concepts and doctrinal characterizations are examined in relation to the need for lawyers to understand the dynamics of each particular case and avoid "verbal traps."
Abstract
Rule thinking invites generalities and abstractions that are particularly associated with defining criminal intent, duty, and foreseeability. Every tort doctrinal topic, however, has its focal categorizers that serve as "black holes" into which critical and constructive thinking disappear. As far as tort litigation is concerned, experienced lawyers are likely to overcome conceptualization problems as they become immersed in the dynamics of each situation. The role of lawyers as advocates should help them search for ways out of vague generalities and abstractions. Even so, lawyers have to confront trial judges whose quite different role can lure them into inhibiting abstract categories. An additional issue is that law school curriculums fall short for their failure to teach linguistic skills beyond those promoted through legal writing courses and requirements. The author concludes lawyers are at special risk of falling prey to "word magic," especially lawyers who have an overriding attachment to law as rules. 87 footnotes