-- NovikaIshar - 18 Apr 2010

Is Prediction the Only Trade of a Lawyer?

THE IDEOLOGICAL IMPACT

Recently, University of Chicago law professor Geoffrey Stone published an op-ed piece in the New York Times about the myth that judges only “apply the law.” Liberal judges are often accused of an overly broad reading of the Constitution, he says, while conservative judges are seen as strictly comporting with the law. Stone contends that rulings in decisions such as Parents Involved, which struck down affirmative action in lower education, actually demonstrate that conservative judges are anything but neutral and detached:

“Rather, fueled by their own political and ideological convictions, they make value judgments, often in an aggressively activist manner that goes well beyond anything the framers themselves envisioned. There is nothing simple, neutral, objective or restrained about such decisions.”

Since ideological intent is an almost inseparable aspect of legal interpretation (indeed, Stone insists empathy was a necessary factor in rendering many of the more progressive legal decisions of the 20th century), what does this mean for lawyers and how should they address this reality in the courtroom?

THE LAWYER’S ROLE AS AN ADVOCATE

Stone points out that while it is true judges are influenced by a set of personal beliefs and mores, “This does not mean judges are free to make up the law as they go along. But it does mean that constitutional law is not a mechanical exercise of just “applying the law.” As litigators, lawyers are working to promote a certain practical outcome, since every decision a court makes has a social impact. The difficult question then is how lawyers can go about achieving this goal when faced with judges who may have a differing social perspective or agenda.

Oliver Wendell Holmes posits that law is nothing more than "prophecies of what the courts will do in fact" and consequently it is the lawyer's role to 'predict' or make judgments regarding the incidence of public force through the courts (Holmes 1). But this does not seem to be a holistic description of what lawyers actually do, since a great deal of persuasion is also a critical component of legal advocacy.

Jerome Frank proffers a more accurate construction of the legal profession in "Modern Legal Magic." Frank argues that it is virtually impossible to determine what standard of belief a court will employ when analyzing a set of facts because such a standard is purely subjective and varies with each individual (49). A court's decision does not just take into account the facts and questions of law in a particular case, but also reflects the judges' accumulated social experiences and beliefs (including non-legal perspectives) that shape how they will analyze those facts and arrive at a legal conclusion. According to this article, endeavoring to make predictions about the likelihood of a judge's behavior is not an exact science, but an imprecise art.

What does this mean in practical terms? Frank’s proposition illustrates that the lawyer’s aim is essentially to manipulate the preset biases of the judge, hostile or otherwise, in order to make her client’s position and the result she is seeking more appealing to the court. The next step of the inquiry is to determine how this is possible.

TRICKS OF THE TRADE

One tenet of the school of legal realism mentioned in Felix Cohen's article is that judicial opinions are actually rationalizations of decisions made prior to the matter at hand. Judges have legal resources to induce the outcomes they personally favor. For example, a judge can choose to apply a low-bar rational basis test as opposed to strict scrutiny to uphold a particular law they find favorable, or in contrast, apply strict scrutiny to strike down a law he or she considers inappropriate. However, courts are somewhat restrained by precedence and for the most part are subject to review by other courts.

Lawyers also have a few rhetorical tools to persuade judges to reach a particular decision that would benefit their client. Cohen mentions, among other things, the manipulation of facts (839). Lawyers can emphasize facts that will make their position seem more sympathetic and cater to a set of judges' ideologies. Another way to help tailor an argument is by looking at precedence. Past judicial decisions can be an informative source about the idiosyncrasies and political leanings of a bench. Finally, it is helpful to portray the legal end and resulting effect sought in a manner that is consistent with any ideological concerns or judicial constraints a court may be operating under. Altogether, the objective of an attorney is to explain to the judge why her side better achieves the outcome the judge is looking for.

CONCLUSION

It is seemingly impossible to separate law from politics, and to separate an individual from his or her beliefs. Cohen notes this dilemma in pointing out that judges and social forces influence the law, not morality or logic. As a result, lawyers must be constantly aware of judges' predilections and react to judges’ temperaments. A good lawyer knows what to do in order to affect a judge. Thus, it seems that a lawyer’s job entails more than just passive predicting or waiting (as Robinson noted), it involves rather a more proactive form of advocacy. With that understanding, it is not completely satisfactory to envision lawyers as mere predictors of the law. Legal strategies for dealing with and responding to judges as individuals should therefore receive more focus in legal education, as having a grasp of these techniques is a crucial part of the job of being a successful lawyer, especially a courtroom advocate.