Navigating the Path of the Law

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.

PREDICTING THE OUTCOMES

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.

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.

KNOWING YOUR CLIENT

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.

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.

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.

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.

MANAGING RISK

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.

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