Law Is Not Just for Lawyers

12/10/2017 12:02 am ET

Law is too important to be left to lawyers, as they say, and it is the foundation of our democracy. Thus law ought to be accessible. To make it more so, I offer a few suggestions to laypeople (and new law students). I watch them attempting to do the work of lawyers as they would not that of doctors, making the same set of mistakes. So I would like to help them, with enough of a warning that they appreciate the need to engage a professional. Law does not work as imagined or as ideal, no matter how smart or well intentioned any individual confronting its mandate might happen to be.

First, law is ambiguous and implemented in America through an adversarial system. The most fundamental error in approaching law is the assumption that there is a single, simple correct answer to a single, simple clear question. There are black and white situations to be sure. But they do not usually necessitate anything that could be called legal "analysis." Once you have a lawsuit though, you have revealed uncertainty. Excepting irrational parties (whom lawyers do much to deter), you end up in a lawsuit because there is a disagreement about law, facts, or both, which is serious as well as sincere.

A speed limit, for example, is legible, literally and figuratively, in an instant, without elaborate intellectual processing. When we drive our cars, we do not hire attorneys to ride in the passenger seat to accompany us to interpret road signs. Whether, once an accident has occurred and investigation opened with the potential of liability, we operated a motor vehicle responsibly and safely depends on many factors. The law renders some facts relevant, others not, and even among the former they may not be treated as equally significant.

Second, the next most common error is reliance on one source of law, usually whatever result magically pops up at the top of the list in a cursory search of the internet. The easier it seems for all of us to find a law, the less likely it is that any of us but the most dedicated and expert will complete the chore of locating all of the law. There are cases, statutes, and regulations, without even contemplating constitutions, treaties, and treatises. They are abstract, bounded by time and space. They can be reversed, overruled, and otherwise superseded, and virtually all of them however universal their preambles have restricted geographic reach. These multiple sources of authority must be synthesized. They may be contradictory. But there are another set of meta-rules, laws about laws. A higher court opinion that is "on point" typically prevails over a lower court decision that deviates; later defeats earlier; specific defeats general; foreign law isn't binding.

A specific version of the conflict among laws is that between the federal government and the state government, and that among the many states in the plural national that has become the singular nation. In a population that is diverse and divided, it is easy to offer examples of this phenomenon. Our individual preferences have generated dissimilar social policies. Some communities by and large approve of same-sex marriage, decriminalization of marijuana, and the carrying of firearms, respectively, while other jurisdictions, even directly neighboring, are less enthusiastic in these regards. How a dispute, civil or criminal, is resolved may depend on whether the Department of Justice or a local district attorney prosecutes, or if a contract clause specifies the "choice of law."

Third, technical language or the lack thereof might be dispositive. The words may be the same as those in common use, but these "terms of art" are consequential. "Dispositive" itself is an example. A lay reader might gloss over the word without comprehending why a lawyer would stop upon seeing it. Whatever is "dispositive" determines the outcome as against other considerations. It is all that counts. These phrases, ignorance of which will not be excused, might be contained in a model code section that is easy to overlook, placed at the beginning or the end rather than with what appears to be the operative section (because they recur throughout the statutory scheme). They also might be, according to a meta-rule, modified by industry custom or course of dealing. The absence of a provision likewise might be crucial. In a commercial transaction between business persons, it is possible that an express deadline will not be enforced as strictly as expected, because there was no specification that "time is of the essence."

Fourth, the failure of evidence cannot be underestimated. Law works with facts, and "facts" for these purposes mean those established by evidence. Whatever the law sets forth, a party that cannot prove the elements of her claim or defense has nothing. The law might favor her and that law might align with her private conception of the truth, but if the piece of testimony or the document upon which she is relying turns out to be inadmissible, then her insistence will not render the improper hearsay or the opinion lacking foundation appropriate to consider. Even if she can produce material that counts as evidence by legal norms, she cannot be sure of the weight it will be given against impeachment and contrary profferings. Whether an actor's conduct was "reasonable" or not may be assessed by an objective or subjective standard, or from another party's perspective, by the judge on a motion or the jury following trial. These are not identical.

Fifth, even an experienced lawyer who is not a litigator may consider the substantive law as if procedural law has no effect. The substantive law, however, is implemented only through procedural law. A prediction about law that is based on substance, without procedure, cannot be reliable. As a member of Congress once stated, if you write the substantive law and allow him to write the procedural law, he guarantees he will win every time (Congressman John Dingell actually put it more colloquially). Substantive law could support you, but if the claim can only be filed in a distant court compromised by corruption, and the attorney fees and other transaction costs exceed the probable value of the recovery, unless you are foolish you have lost already. A defendant might be confident that a plaintiff cannot ultimately produce evidence on her cause of action, but she might settle if her motion to dismiss is denied, for there is always the chance that she will be unsympathetic to a jury and even the best appeal has but middling odds.

Sixth, the most profound lesson of the 1L year of law school is learning how to "spot the issue." This ability improves over a lifetime of practice. Legal problems are messy. Before you fight, you might fight about how you will fight and what the fight is about anyway. You have to define the problem. The training in spotting the issue(s) is introduction to an art. It depends on experience, the memory of similar situations and how they played out. An analogy is best here: a chess master or professional athlete sees the board or the playing field differently than the novice and amateur. The lawyer envisions the potential moves, the countermoves, and so on to the end of the match, because she has seen them before, repeatedly. Strategies are not equal, and they require adaptation to the opponent, the decision-maker, and dynamic circumstances. Law cannot be considered in the abstract any more than chess played by one contestant or a sporting contest conducted without the real play. You think you know the issues. But a slight change in the framing brings about a significant change in the fight. More than one claimant who thought, not without basis, she had a grievance that should be remedied is disappointed because of the statute of limitations, lack of jurisdiction, mootness, ripeness, or another obscure jurisprudential mechanism. She would have behaved differently had she spotted the issue of a time bar.

I am much better a lawyer now than I was more than twenty-five years ago when I became a member of the bar. Yet I know much less doctrine than I did then. I probably would fare poorly on an exam in any specialty other than those I teach regularly. Like others, however, I can look up the law I need to consult. What has improved beyond easy measure is my knowledge not available in books or their equivalents. When I was memorizing massive amounts of law in order to pass the bar exam, that is all I was doing. That knowledge did not make me competent.

Looking at non-lawyers struggle with law, I would hypothesize that persons most vulnerable to overconfidence are those who are highly trained in another discipline. They can reason with utmost competence about engineering, science, math, medicine, and technology, and they infer they can transfer their skill set. That is as misguided as my supposing that, as a lawyer, I can be an architect. I have become more capable as I have become more humble.

My final observation about rule of law is that the greatest threat to it is not anarchy but dogmatism. In the common law tradition, rule of law has an intrinsic variability. As a human activity, a system of law cannot eliminate all doubt. Some of these discrepancies are imperfections, others are improvements; which they are might depend on which side you stand on. Brown v. Board of Education was a moral declaration against racial segregation. But it was a deliberate break from the precedent of Jim Crow "separate but equal." The bigots who argue against Brown are terribly mistaken. Yet they are correct that until it was handed down its conclusion would have been contrary to the law. That is why it was imperative. I shudder at those, formally lawyers or not, who would treat law as authoritarian. They would substitute their version of law for a shared system of self-governance.

These realizations extends beyond law to life. What matters most to our success however defined is not what is in our heads but how we apply it.

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