On The Socratic Method, on Cross-Examination, on Legal Education, on Bar Exam Preparation, and on Knowing Answers
By Ken K. Gourdin
On Mormon Dialogue and Discussion, the old adage that a lawyer should never ask a question to which one does not know the answer came up, and someone brought up the Socratic Method, a teaching tool favored by many law professors, in which the questions are more important than the answers, being used to explore the various aspects of finer points of law, policy, their social and other implications, and so on. The question implicit in the discussion was, why the difference? Can the two seemingly-contradictory answers be reconciled? I pointed out that reconciliation lies in the difference between the two fora in which the questions are asked.
The way in which the subject came up is when I announced my departure from a thread when it seemed to me that unfair judgment was being passed upon me. Another poster gently ribbed me by asking, “I thought law school taught you [to not] ask questions [to which] you don’t know the answer.” In response, another poster brought up the Socratic Method, a teaching tool used in law school in which definitive, concrete answers to questions rarely are forthcoming.
You’re quite right that the Socratic Method is less about the answer than it is about the questions. Philosophical discussions are fascinating; anyone who’s been to law school has had his or her fair share of those, although a professor thinking s/he knows how to use the Socratic Method effectively, on the one hand, and actually using it effectively, on the other hand, are two different things. (I had one professor, in particular, who baffled many of my student colleagues: Many of them thought he was simply engaging in some sort of pointless intellectual torture, when, in fact, if one actually took the time to listen and to try to ferret out what he was doing, his use of the Socratic Method actually was effective as a teaching tool … which, to be quite blunt, is more than I can say for at least some of his colleagues.)
Philosophical discussions, however, may or may not teach one what s/he needs to know to effectively practice law, and as fascinating as such discussions can be, it’s a source of no small consternation to would-be members of the Bar to realize that they’ve just spent three years in law school chasing professors down intellectual rabbit holes without necessarily learning anything which will help them pass the Bar Exam, and to realize, further, that for that, they’ll likely need to fork over an additional few thousand dollars for preparation materials and to spend dozens more hours of study.
Now, that having been said, the first rule of effective cross-examination (that is, of questioning a witness who is adverse to you) is, “Don’t ask a question you don’t already know the answer to.”