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< | A Modern Path of the Law | >
> | Navigating the Path of the Law | | | | |
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< | -- By JanePetersen - 15 Feb 2012 | | | | |
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> | According to Oliver Wendell Holmes, Jr., the task of the lawyer – the good lawyer, at least – is to predict. Accurate prediction is the key to her success, as clients pay her to achieve a desired outcome. Holmes instructs us that the law consists of the “prophecies of what the courts will do in fact.” Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 460-61 (1897). Thus, knowing how the courts will rule, a lawyer will advise her client what action to take or from which to refrain in any given situation. Combined with an intimate understanding of her client’s unique goals, this ability to predict leads the lawyer to an effective risk management strategy that will best yield her client’s desired results. | | | | |
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< | Section I | | | | |
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< | Why use section headings
that convey no information to the reader? | >
> | PREDICTING THE OUTCOMES | | | | |
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< | According to Oliver Wendell Holmes, Jr., the task of the lawyer – the good lawyer, at least – is to predict. Accurate prediction is the key to her success, as clients pay her to keep them out of court. Holmes instructs us that the law consists only of the “prophecies of what the courts will do in fact.” Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 460-61 (1897). Thus, knowing how the courts will rule, a lawyer will advise her client what action to take or from which to refrain in any given situation. The purpose of this, we’re taught, is to keep her client out of court entirely. | | | | |
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< | Is that what Holmes
said? Or rather, that the purpose is to give reliable predictions of
the incidence of the public force? In tax practice, the usual
purpose is to assist in structuring transactions to avoid taxes, or
to determine whether costly and risky efforts to avoid taxes will be
worth it. In administrative contexts, the lawyer's predictions may
be used for the purpose of reducing or sidestepping regulatory
burdens on business profitability. Even in the context of
litigation, lawyers' predictions affect whether litigation is
initiated as well as how it is avoided, managed or defended. | | | | |
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< | | >
> | Though seemingly litigation-focused, this advice applies to transactional and other lawyers as well. Knowing the formal consequences of a client’s past or potential choices will impact the advice a lawyer dispenses. The specter of litigation, penalties, or other enforcement actions inform as to the risks of action or inaction. True, some lawyers also counsel their clients as to public perception and other informal consequences, but as Holmes sets forth, the “law” itself is the likelihood and result of the incidence of public force. With the possibility of public force looming, a lawyer’s first goal, then, is prediction. Knowing the consequences of a client’s decisions is the not a lawyer’s only task, but is her primary step in achieving success for her client. | | | | |
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< | What, then, is the role of Holmes’s theory of lawyering over 100 years later, at a time when society has arguably become more litigious? | >
> | Holmes instructs us, “…a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court; and so of a legal right.” Id., at 458. Applying this maxim more broadly, a lawyer must know both the formal consequences of not performing certain duties and the formal enforcement of her client’s rights. A client’s aim may be to avoid being sued in the first place, or to win in front of a court of law, or another result along a continuum of legal consequences. Before choosing a strategy to achieve such a goal, however, the lawyer must convey to the client his rights, duties, and their corollary effects. | | | | |
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< | "Arguably" is a weasel
word here. It means "I have no data to provide, but I need this
factual assumption in order to make my argument, so "arguably" what I
say is true. | >
> | KNOWING YOUR CLIENT | | | | |
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< | The statement is plausible. But if your editorial attention had been
scrupulous, questioning the statement might not only have sent you in
search of evidence to back it up, it might have led to a more through
questioning of the exclusively defense-sided litigation-focused
interpretation you are putting on an approach Holmes means more
generally. | | | | |
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< | | | | | |
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< | Even though a lawyer may correctly predict a judge’s eventual decision, this act alone may not keep her client out of court. Her client’s opponents may very well have less adequate counsel, with poor ability to predict a judge’s decisions. In this context, her client will get sued anyway. Though she will likely eventually prevail in a court of law, she will end up arguing before a judge first, thereby failing in Holmes’s principle goal. | >
> | Once the risks to her client are clear, the lawyer must engage in her role as a risk manager. In order to perform this job well, she must know her client’s goals and how risk-averse she is expected to be. Though risk management may involve analyzing a range of possible courses of conduct and the outcomes therefrom, a client’s unique perspective of his own goals may significantly narrow this range, sometimes even to a single strategy. Thus, while a lawyer must be able to perform risk management along multiple planes of possibility, her task will be broadened or narrowed by her client’s own risk preferences. | | | | |
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> | Robinson in Lawyerland shows a unique but instructive example of the importance of knowing your client. When Robinson discovers that a client of his may actually want to receive jail time, he does the “Popeye dance” to avoid detection and achieve his client’s goals. First, the lawyer must “get the idea” – she has to understand her client’s motivations and goals so she can respond appropriately. Then, however, she does not necessarily make all efforts to “win,” per se; she makes all efforts to achieve the outcome her client seeks. | | | | |
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< | Today’s lawyers, then, must attempt to understand Holmes’ conception of the job of a lawyer in a way that will be as effective now as it was in 1897. Holmes instructs us, “…a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court; and so of a legal right.” Id., at 458. To apply this maxim today, a lawyer must know whether her aim is to avoid her client being sued in the first place, or to win in front of judge in the event of a lawsuit. | >
> | This anecdote reminded me of a real-world case about which a mentor told me before I began law school. He practices in the field of medical malpractice, and this story taught me that both defense and plaintiff’s attorneys in criminal and civil litigation alike must focus on their client’s unique goals before choosing strategy and tactics. This lawyer’s client was a widow suing a hospital and its doctors for malpractice resulting in the death of her husband. Typically, he told me, medical malpractice plaintiffs’ attorneys with a strong case seek out a jury trial while the defense side desires settlement. However, this client was unique. The events leading up to her husband’s hospitalization were so embarrassing to her that she would have done nearly anything to avoid trial. Though she almost certainly would have prevailed in front of a sympathetic jury, she utterly refused to expose the details of her husband’s death for any amount of money. | | | | |
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< | Wouldn't it be correct
to say that the decisions about which risks to evaluate are shared
between lawyers and clients? That clients ultimately decide, and
that lawyers may suggest but not determine possible courses of
conduct and levels of tolerable risk? | >
> | In a situation such as this, though her lawyer could easily predict how the court would react to the litigation, he then had to step back to respond to his client’s distinctive wishes. Like Robinson’s, a client’s goals may appear counter-intuitive or risk-intensive compared to traditional practice. However a lawyer is not doing her job if she merely predicts the outcomes; she must next determine her client’s individualized preferences. | | | | |
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< | Though some might reply to such a question, “That’s obvious. Both,” this response overlooks the possibility that a lawyer’s advice to her client might differ depending on which of these two goals she is pursuing. These choices may be mutually exclusive, | | | | |
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< | Not analytically. In
advising clients I evaluate all the time the nature of risks and
costs intermediate to desired outcomes, as well as the overall
likelihoods of those outcomes. Some thought devoted to the
difference between strategy and tactics might be useful
here. | >
> | MANAGING RISK | | | | |
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< | and today’s lawyers must know which path to pursue. If the objective is to avoid suit entirely, it stands to reason that good counsel would be even more conservative, so as not to enflame the less competent lawyers and more litigious clients who are quicker to sue and less able to accurately predict outcomes in court. In Holmes’ day, this may have been the exception, and thus he avoided basing theory on infrequent occurrences. Today, though, the courts frequently see frivolous lawsuits and many clients factor a certain amount of legal conflict into their budgets. As such, lawyers must be able to advise their clients’ actions given both the possibility of winning a lawsuit, and also the possibility of being sued in the first place. | | | | |
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< | As well as many other
probabilities in many other contexts. Why doesn't the concept of
"risk management" enter into the
conversation. | >
> | Finally, then, knowing how legal duties and rights will translate to public enforcement, and knowing the mix of preferences of any given client, the lawyer must engage in thorough risk management to achieve the desired predicted results. For, merely predicting the result of litigation or knowing that a client expects a certain sum of money is pointless without more. Also required are a lawyer’s judgment as to the best strategy and tactics to choose in pursuit of the optimal outcome. Given the constraints of the system and her client, as well as a given amount of uncertainty, a lawyer must engage in cost-benefit analysis when advising her client as to strategy. She then is able to choose the tactics most likely to bear fruit. | | | | |
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< | Section II
An alternate, more modern, school of thought might provide the answer on updating Holmes’ wisdom for today’s lawyers. Robinson in Lawyerland suggests that the lawyer’s job is not only to predict outcomes, but ultimately to do what her client wants. When Robinson discovers that a client of his may actually want to receive jail time, he does the “Popeye dance” to avoid detection and achieve his client’s goals. First, the lawyer must “get the idea” – she has to understand her client’s motivations and goals so she can respond appropriately. Then, however, she does not necessarily make all efforts to “win,” per se; she makes all efforts to achieve the outcome her client seeks.
I think this is a
peculiar example to choose. Most of the time, the way we know what
our clients want is that they tell us. The usual problem in
counseling is that the client hasn't yet formulated relevant
instructions, because the issues on which a decision is required have
not yet become clearly visible. The lawyer's task is to bring to the
client's attention the issues that require decision, to frame the
inquiries necessary to determine the risks or opportunities involved,
to indicate the strategic objectives and resources involved in
managing the risks or exploiting the opportunities, and to frame
tactics intermediate to the achievement of the client's resulting
strategic determinations. Robinson's point about the obscurities
involved in dealing with client subterfuge is hardly a general theory
of representation.
Then, reconciling the implicit advice of these two lawyers, which may yet be compatible, the good lawyer must predict what will get a client sued, what a judge will decide, and what her client desires.
Predicting client
intentions does not strike me as a good summary of the process of
counseling.
Some clients will choose to be more conservative, adopting an approach that avoids the likelihood of suit entirely. Other clients, however, may be less risk-averse; his lawyer will be doing her job when she, as Holmes directs, predicts if her client will be made to suffer by judgment of the court. All of this comes down to a lawyer’s ability to predict, the key element in Holmes’s piece. Without the paramount assets of foresight and sound judgment, she will be hard pressed to deliver on her client’s goal, whatever it may be.
The most obvious places
for improvement of the draft have been indicated in the comments
above, I think. In general, the effort to show that Holmes is wrong
or outmoded probably could give way to a more analytic discussion of
lawyers' inputs to risk management for business clients, or a further
inquiry into how individual client counseling works in the context of
Holmes' general point, among other possible approaches.
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> | Holmes’s idea of the law as prophecies of courts’ decisions is instructive as a lawyer balances the risks inherent to her clients’ particularized preferences. The law isn’t a list of written rules, but the real-world consequences of a client’s and his lawyer’s decisions. Knowing this, the job of a lawyer is to manage these risks.
-- JanePetersen - 22 Apr 2012 | | | \ No newline at end of file |
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