Open Bar: Aim at a moving target
February 17, 2013
Oh, to be a mathematician! To have certain answers to tough questions would be divine. Alas, that is not the milieu of the lawyer. Attorneys operate in an uncertain world populated by nuance and conjecture and are guided by a canon that is ever-changing. Using intuition borne of training and experience, the skillful lawyer navigates the litigation landscape with care and the recognition that no outcome is assured until the final gavel bangs. In contrast to its straight-laced cousins such as the law of gravity or the second law of thermodynamics, the law is far from immutable. Indeed, it mutates on a regular basis as legislatures reflect changing mores (see Amendment 64) or, more frequently, as courts issue new opinions. The law is also startlingly incomplete: It does not cover all or even most eventualities. The law is a precedent-based system. A given jurisdiction’s laws at any point in time are a conglomeration of the historical decisions of its courts or the courts to which it must give deference, such as the Supreme Court of the United States. While there are statutes and codes that spell out certain obligations, penalties and remedies on a macro level, application of the statutory law is left to the courts on a case-by-case basis. There is also a whole segment of the law that is derived not from any formal code but from the “common law,” which is the law that has evolved over time from the decisions of centuries-old English courts. The law changes every time that a court renders a new decision. It might be a small change or a monumental one such as Brown v. Board of Education, but regardless of its size, the new opinion has become a new precedent to be followed by courts in the future. It is very rare for a client’s case to exactly mirror a precedential case, which makes sense when one considers the myriad variables of which an event is constituted. The parties may be of a different type, the timing of actions may be altered, the contents of a writing or a party’s speech may be distinct. All of these factors, and more, influence a court’s decision. Even if the case by some remote chance is identical to a precedential case, the court may decide, for various reasons, to either ignore or overrule that precedent. It is also possible for a precedent on which you were relying to be overruled by another court while you are in the middle of your case. The exact same case is even susceptible to a different outcome, given the vagaries in witness credibility and the particular predilection of the judge. In the end, precedent is merely a guidepost, not a well-blazed trail.Imagine trying to put together a puzzle when the picture on the box is half missing and then changes suddenly when you are on the cusp of completion. Such is the nature of the attorney’s occupation. Given the confounding characteristics of the law, forecasting the likely outcome of a client’s case can be a tricky business and one that mixes scientific principles with a bit of art. An attorney must often conduct extensive research into existing case law to understand the historical development and current state of the law in the area relevant to the client’s case. This research also will help the attorney get a sense of whether the law in that area is apt to change. Once the research groundwork has been laid, the attorney must explore the parameters of the client’s case and determine how that case fits in with the existing currents of the law. If the applicable area of the law is well-developed, then the attorney has enough comparison points to gain a fairly clear picture of how the client’s case may be treated by the court. However, there are many areas of the law that are either novel or have few decided cases. In these situations, the lawyer will have a much harder time fitting the client’s case into a neat category. Indeed, the client’s case may be such that the lawyer and client will be striking out into completely unprecedented territory. In these cases, the attorney’s experience and gut feeling will be informative.Clients look to their lawyers for unambiguous answers. Yet, due to the shifting and fragmented essence of the law, the reality is that the best an attorney can do is provide a range of likely outcomes. Beware the lawyer who promises a specific result.T.J. Voboril is a partner with Thompson, Brownlee & Voboril LLC, a local boutique civil litigation firm. For more information, contact Voboril at 970-306-6456 or firstname.lastname@example.org or visit http://www.thompsonbrownlee.com.