Is practical wisdom simply expertise?

In The Lost Lawyer, Anthony Kronman firmly distinguishes between expertise and practical wisdom. He writes, for example, that lawyers who are "transactional specialists whose narrow relationships with their clients give the clients little reason to ask for the lawyers' deliberative advice, and the lawyers themselves limited experience at providing it .... may even begin to wonder whether practical wisdom has any value at all, and openly reject the ideal of the lawyer-statesman -- which seems irrelevant to [their] work -- in favor of the very different ideal of the expert with its emphasis on knowledge and technique and its disregard for character." (290-91)

But Kronman also finds a great deal to admire in what he calls "prudential realism," whose "heart ... lay in a certain conception of prudence or practical wisdom." (209) This approach to the law, which Kronman finds articulated by Karl Llewellyn in his later work, refuted the contention of other realists that there was no meaningful constraint on the process of legal decisionmaking by arguing "that judges are constrained not only by doctrinal rules but also, and more importantly, by specific traditions of work and by the habits of thought and perception that an immersion in these traditions typically produces." (213)

Kronman describes Llewellyn's views in some detail. Here is one striking passage (quoted by Kronman from Llewellyn's The Common Law Tradition: Deciding Appeals 119 (1960)) in which Llewellyn describes how judges approach the decision of a case:

[A]s he meets the facts of a fresh case, or, once the facts are semiclear, as he approaches an authority for guidance toward decision, he is engaged in human questing for a diagnosis and an organization of the problem, and in lawyer questing for a legal way to see and to pose the issue, and for a legal line along which to puzzle. The conclusion is indeed not yet given, but the quest and urge for a satisfying picture, and for a satisfying answer: they are given. The mind therefore sorts, arranges, turns, rearranges the facts in one tryout after another, in search for some firm shape that fits, that poses and sharpens a problem, perhaps even suggests a solution. The mind thus almost of itself spots and highlights in an authority the available facet which feels as if it may give a lead.

Now this description is almost uncannily like today's accounts of expertise. What experts appear to have, according to these accounts, is an "extensive, well-organized knowledge of the domain in which they work, knowledge to which they have extremely quick access.... [W]here novices must struggle to identify and understand the significance of an almost infinite range of unfamiliar considerations, experts approach each case with a deeply practiced understanding of both what they need to learn and what they need to do once they've learned it." (I'm quoting from my own inquiry into the impact of expertise on lawyers' work as interviewers and counselors, in Stephen Ellmann, Robert D. Dinerstein, Isabelle R. Gunning, Katherine R. Kruse & Ann C. Shalleck, Lawyers and Clients: Critical Issues in Interviewing and Counseling 351 (2009) -- a book I announced in blog posts some time back.)

If what expert lawyers and judges have is a deep, almost instant understanding of "what to do" -- as defined by the accumulated knowledge within the profession -- then the possibility arises that, after all, lawyers' practical wisdom is simply this ingrained knowledge. But this conclusion might mean that Kronman's effort to distinguish between mere knowledge and technique on the one hand, and the special character required for practical wisdom on the other, is mistaken. Knowledge and technique, on this account, equal practical wisdom.

Maybe not quite. To master the accumulated knowledge of a profession, any profession, requires some traits of character. The knowledge is extensive, so its mastery requires hard work and that in turn requires self-discipline. The knowledge is also at least somewhat jarring. Many law students don't initially feel that they know how to "think like a lawyer." Even those who find law's brand of logic congenial will almost certainly encounter rules and arguments that they dislike, but with which they must reckon in order to achieve an accurate understanding of the current state of the law. Engaging with, and assimilating, new styles of thought and unwelcome lines of argument probably involves a certain stance on the part of the future lawyer towards the discipline -- some sort of receptivity (whether eager or skeptical) rather than fundamental hostility. These are aspects of character, and it may well be -- as Kronman suggests -- that the process of legal education tends to bring out these traits in students. But the willingness to learn and adapt that I'm describing seems quite a distance from the sympathy and detachment that Kronman views as integral to practical wisdom and as a central product of legal education.

If I am right, I think that practical wisdom is less special than Kronman suggests it is. But that would be a happy conclusion, because it would suggest that achieving the excellence of judgment that lawyers need is more within the grasp of each one of us.