Vail Law: Facts, law, evidence and good lawyering all matter in court (column)
Let that equivocation stew for just a moment while we define some terms.
First, what is law? Have you ever thought about that?
“It’s ah … well, no not really. I mean …”
Let’s get our toes wet and take a shallow dive. Think of law as a body of rules of conduct of binding force and effect, prescribed, recognized and enforced by controlling authority. Law in the United States is a mosaic of statutes, treaties, case law, administrative agency regulations, executive orders and local laws. U.S. law can be bewildering because the laws of the various jurisdictions — federal, state and local — are sometimes in conflict. Moreover, U.S. law is far from static; that, in part is what keeps us lawyers on our toes. New laws are regularly introduced, old laws are repealed and existing laws are modified, so the precise definition of a particular law may be different tomorrow from what it is today.
So far, so good. But law is so much more than that. Patriots and politicians (not necessarily the same thing) through the ages have defined our nation as one founded on the “Rule of Law,” which may itself be defined as the authority and influence of law in society, especially when viewed as a constraint on individual and institutional behavior; hence the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes. So there is a societal aspect to law as well, one that defines the culture in which the law exists and hopefully thrives. Law is all pervasive; just turn on the news. In real sense, law is culture.
Facts are, well … facts. A “fact” may be thought of as an incident, act, event or circumstance. A fact is something that has already been done or an action in process. It is an event that has definitely and actually taken place, and is distinguishable from a suspicion, innuendo, anecdote or supposition. A fact is a truth as opposed to fiction or mistake. A fact is what “is” instead of what is made of ether and imagination.
Next, we come to evidence, which in law can be a bit of a slippery subject. I like to think of evidence in two ways: one, which is “absolute” and the other which is “admissible.” Admissible evidence is a subset of absolute evidence but not vice versa. Evidence is any matter of fact that a party to a lawsuit offers to prove or disprove an issue in the case. A system of rules and standards that is used to determine which facts may be admitted, and to what extent a judge or jury may consider those facts, as proof of a particular issue in a lawsuit. Not everything that is, might or could be evidence is permitted or “let in,” in a particular case. Without going too far afield, hearsay is a type of evidence but, unless a particular exception applies, hearsay is generally not admitted to prove or disprove an aspect of the case.
Last, we come to lawyering, which I like to think of as the skill part of the equation. If a trial can be compared to a game of football, then the rule book can be thought of as the law. Facts may be thought of as the plays. And evidence may be the proper execution of those plays. What that leaves then is the lawyering — is it Tom Brady or the late, not-so-great JaMarcus Russell? While Brady may thread the proverbial eye of a needle with a camel, JaMarcus, ah … well, not so much. Like a quarterback effecting plays, the lawyer marshals the law, the facts and the evidence to score.
Why ‘it depends’
One of the common conversations I — and I presume all lawyers — have from time-to-time with clients or prospective clients goes something like this:
I say, “So the facts are the facts.”
The client says, “I want to (fill in your own blank here).”
I say, “This is what the law has to say on the issue. This is what the law will permit.”
The client repeats the line above.
I say, “We are hemmed by the facts. They define the boundaries of what we will be able to do. And the applicable law will be the bumpers that we must knock up against. We will fight to get in the evidence that helps us.” Then I usually repeat, “But the facts are what they are,” adding, “We can’t recreate those,” then smiling, “But we might be able to give them a little spin. Every case is different. Even when the same law is applicable, the facts are always different and it is the facts that dictate the evidence and how the law may be applied.”
Good lawyering matters. Diligence, hard work, preparation, a bit of creativity, one presentation and a bit of chutzpa matter. A good lawyer — a prepared lawyer — may not exactly be able to turn a sow’s ear into a silk purse but he or she can at least pretty it up to make it seem presentable.
Facts. Law. Evidence. Admissibility. And good lawyering. These are the ingredients of trial that, with a little seasoning may just cook up a successful outcome.
So, it depends.
How things ultimately turn out in a courtroom must take the makings of the lawsuit into consideration. But properly prepared, the outcome might turn out “just right.”
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or firstname.lastname@example.org.