Is Prediction the Only Trade of a Lawyer?

-- By NovikaIshar - 26 Feb 2010

Oliver Wendall 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). This construction of the legal profession seems problematic for two reasons. One is the reason cited in "Modern Legal Magic," that predicting the beliefs of judges and juries is not a quantifiable or measurable science available to lawyers, but rather an imprecise art. The second, and perhaps more difficult, reality is that judges' personal ideologies are a significant factor in the judicial decision-making process, but are often beyond the scope of a lawyer's ability to influence through legal argumentation since they are predetermined and entrenched. This seems to have troubling implications for the role of lawyers as advocates in the courtroom.

In "Modern Legal Magic," the author 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 artistic effort to achieve a social idea or aspiration which can be approached with a scientific spirit. This assertion is correct in the sense that arguing before a court involves creativity and the desire to achieve a particular social outcome. However, while it may be impossible to classify a judge's thought process in order to create a formulaic guideline that lawyers can follow when arguing before that judge, it is possible to look at precedence and get a sense of how that judge tends to vote on certain issues. Generally, judges are consistent in comporting with a personal ideology when interpreting the law, whether conservative, liberal or otherwise categorized.

This leads to the second part of the problem, which is the notion that judges have personal belief systems that affect the way they will make decisions. 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. It is reasonable to conclude that the more strongly a judge feels about a particular issue, the more likely it is his or her private viewpoint (based on personal morals, experiences, etc.) will ultimately determine the outcome of the case, rather than the facts or legal arguments before them. Examples of this phenomenon include controversies involving contested topics such as abortion, gay marriage, or gun laws. Every decision a court makes has a social impact, and often a judge is guided more by the desire for achieving a certain practical result than by any legitimate legal reasoning presented by lawyers.

Lawyers have a few rhetorical tools to persuade or trick judges into reaching 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. But judges also 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, or in contrast, apply strict scrutiny to strike down a law he or she considers inappropriate. Justifications for supporting one mode of analysis over another sometimes seem flimsy or arbitrary, and judges are strongly divided on how they interpret the facts before them, as evidenced by the multitude of 5-4 split decisions handed down by the current United States Supreme Court. Since the facts and laws before a court are the same, the cause behind the differences in judicial opinions are the judges; individual beliefs. The long opinions of judges explaining why they reached the decision they did may just cloak a preset personal belief that cannot be swayed by any appeal made by a lawyer.

What repercussions does this predicament have for lawyers? Are we just forecasters who play the waiting game and hope for circumstances (namely judges) to change, as Robinson shrewdly noted? Or is there something more lawyers can and should do in representing clients? The current dispute over gay marriage may heatedly make its way before the Supreme Court. Yet many proponents of marriage equality want to postpone such an event because they believe the political or ideological leanings of the judges on the bench will preclude a victory; meanwhile, the question of whether a segment of the population can exercise certain rights is put on hold. 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 respond to judge's temperaments. A good lawyer knows what to do in order to affect a judge. Yet in looking at voting records, it seems judges consistently decide a certain way depending on their subjective standards of belief. This is especially challenging in light of the fact that lawyers engage in the making of common law in courtrooms and thus have the unique ability to effect social change through the law, as visible in past civil rights cases. It seems that this responsibility entails more than just passive predicting, but involves a more affirmative advocacy. At the same time, there does not seem to be much lawyers can do in the face of staunch ideological obstacles. While a resolution on this issue may not be clear, I am not completely satisfied with envisioning lawyers as mere predictors.