In the old days, way back in the last millennium, when online access was very expensive and modems were very slow, people used what were called OLRs - Off Line Readers - for discussions on bulletin boards. The beauty of the OLR was that it linked all messages in a conversation chronologically to make reading easier: like a good email program does but with a party line capacity. Every person's contribution to the same converstion was included in the linked chain in the appropriate chronological slot. That meant the contributions of multiple people were included in the same thread one saw on one's screen. You didn't have to cut and paste to link, or use multiple screens.
Since the TypePad software doesn't have that OLR-type capacity, what I will do is place my replies to your comments on the last part of this thread, either the preface to the next post or in a separate post by themselves preceding the post containing the next excerpt. What I will also do is state in the comments section that my reply to your comments is contained in my next posting PDWTS - Part whatever. There's also this. The formatting capacity in the comments section is, put politely, crippled.
If you or any of our readers have better suggestions, feel free. Actually, if any readers are coding wizards and want to write that code for TypePad, I'm sure it'll be pleased to ignore you. That's because that sort of OLR / email programme capacity, for social platform communication leads to, remarkably, Off Line Reading, which is exactly what a paid advertising-hungry social media platform does not want. Off Line Reading (OLR'ing) reduces the notional and actual "eye count" - the clicks - which, as I understand it, is one measure tool for platform popularity; hence, of course, the term "clickbait". My solution, for that issue, here, is multiple screens to read and cutting and pasting to write. Such is progress?
I think you meant "less colourful and more direct fashion if only because [you were attempting to] typ[e] from an idiotPad, punching in letters one by one. (So readers don't have to refer back to his comment, I've added "more" and the "diot" and emphasized "punching".) More "solution" for the difficulty of touch typing on my idiotPad mini is a small Bluetooth keyboard - but not an Apple version - which I carry in the shoulder bag that I know carry because I'm a real student, again. As opposed to the less useful version I carried when I wasn't a real student (of the law), just a practising lawyer. That's not as much of a tangent as it might seem. It connects to the "how to best think as a lawyer theme", you might also call it the "how to properly think as a lawyer them" which is one of the themes of our conversation. I'll explain that point, for our readers, starting in the next paragraph.
When a client approaches a lawyer - a transactional lawyer (doing "solicitor's" work such a contract drafting) or a litigator - it's to have the lawyer deal with specific issues. When a litigator is retained in the dispute context - dispute being my broad term to include all problems, not just those in litigation - the litigators job is to devise a solution to the problem. In the simplest paradigm, the litigator identifies the case or cases that govern and provide the solution the client wants (or the closest approximation) and then designs a strategy which necessarily leads to that end. If we think of this as a line of numbers between 0 and 11 - I'm in Oxford, folks, in England: that will tell some of you why I've begun at 0 and ended at 11 - the lawyers job is to make sure the only valid legal path available to the other side of the dispute, or the judge if the dispute gets to court is one that starts at 0 and ends at 11. That means, in some appropriate fashion, closing off, walling off, blocking, putting up walls, sealing off, etc. any path that would allow the other side, or the judge, to stray off the the path or not complete the path to 11. In a very general, but accurate, sense, it amounts to putting walls up around the universe of what's relevant to the proper decision for the problem so that all that is relevant is what helps one's client.
This explanation of what is involved in thinking like a lawyer is incomplete, at this stage, intentionally. What I have described is the end result of the process where one has identified the cases that require the judge to decide in one's client's favour and how to wall off (i.e. distinguish) the cases which might have been used against one's client.
The judge's manner of thinking is the a version of the lawyers. The judge asks herself or himself two questions: (1) what is the applicable law and (2) what conclusion or conclusions are open to the judge in light of the law as applied to evidence. I have asked these questions in a system where the judge is constrained stare decisis -by the rules determining what evidence is available and, in systems which have a doctrine of binding precedent, where the existing judicial decisions and the judge are on the hierarchical judicial pecking order and the portion of the rule of law which is the principle that like cases will be decided alike. If the judge wants to decide the case in one's client favour, the judge will look for an analysis which allows the judge to state that, on the particular evidence, the result you want is produced by this analysis. If the judge wants to decide the case against you, the judge will look for an analysis with allows the judge to decide against you, all of this (in theory) done within the walls that circumscribe the universe of law and fact the judge is permitted to consider. As I mentioned, it's counsel job to build a case which prevents the judge from do that validly.
The situation in the rare instance of a case which raises entirely new issues in law? That's arguably, the one instance where lawyers have to drop their blinkers. But most lawyers don't get that case.
An academic has the right and obligation to analyze the problem in a non-blinkered way. The blinkered analysis is the descriptive analysis: what is answer required by the law as it is. The non-blinkered analysis is the prescriptive analysis: what ought the true answer to be, taking into account everything the academic believes is appropriate to the analysis. This could include a change of the applicable law (substantive, including in that evidence law) and procedural meaning the manner in which rights are asserted and enforced.
Are there any circumstances under which a practitioner must think like an academic. I have mentioned one: the rare instance of new legal issue. However, there is a more obvious one. That's where the practitioner is determining whether a case necessarily supports the client's case or, if it doesn't, can be distinguished. It's the same situation where one is dealing with the interpretation of a statute. If the case or the statute clearly support one's case, you want to wall off any argument against that view. That's a matter of what the law is. If the case or statute are against the result the client wants, you have to think of ways around the case. That will involve thinking outside of the walls, just in case one of those arguments about what the law ought to be show you a way to distinguish the case in a narrow sense; or, to show that appearances are deceiving: that, for some valid reasons, the case was never intended to apply to the facts of the type that make up your client's case and because of that argument the older case is not precedent nor persuasive and the statute doesn't apply.
In the broadest sense, it's using the dictum of Lord Halsbury in Quinn v. Leathem,  A. C. 495 (H.L.) at p. 506: “I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.” The complete passage from Quinn v Leathem is:
Now, before discussing the case of Allen v. Flood and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.
The last two sentences have been quoted in full, seemingly with approval, by provincial appellate courts and the Supreme Court of Canada. See here: here being one instance on my blog "the 4th Monkey" where I've quoted listed the various cases in Canada that have quoted the aphorism and have purported to apply it.
With all of that in mind, my specific replies to your comments are in the next part of this thread.