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University of Cincinnati Law Review

Abstract

This Article’s purpose is to propose a heuristic for effectively resolving complex litigation problems that are not clearly or concisely defined, do not present any immediate solutions, frequently involve novel situations or applications of legal doctrine, and suggest a var­­­­iety of possible approaches. The features of this heuristic are derived from and compatible with what we know about good scientific theories and cognitive studies on acquiring knowledge and expertise in any area. As proposed herein, students and less experienced practitioners should focus on developing “critical thinking” skills allowing them to use their training and experience to become adept at identifying and solving these challenging problems and avoid common pitfalls that are the result of a more conventional “linear” approach.

By applying the heuristic, novices as well as more experienced practitioners will recognize several points about effective problem solving. First, identifying appropriate solutions to complex legal problems, regardless of the context in which such problems arise, requires a willingness to engage in “lateral” (i.e., non-linear) thinking. That means relying upon analogy and other critical thinking skills to tackle novel and ill-structured issues instead of confining oneself to superficial problem features or specific legal areas or doctrines. Second, while legal doctrine and research remain important elements of the study and practice of law, problem solving should not start with a search for “precedent” or the “case on point.” Instead, it should begin with constructing a critical theory for the problem under review—using several of those elements making up a good scientific hypothesis—followed by “validating” that theory, or assessing whether the proposed solution is compatible with such authorities. This entire process should at all times be informed by common sense and open-mindedness.

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