A Modern Path of the Law

-- By JanePetersen - 15 Feb 2012

Section I

Why use section headings that convey no information to the reader?

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.

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.

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?

"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.

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.

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.

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.

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?

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,

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.

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.

As well as many other probabilities in many other contexts. Why doesn't the concept of "risk management" enter into the conversation.

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.