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On any given day I receive requests for legal advice – from clients, friends, and strangers. Half of the time I am not truly familiar with the subject and usually not that interested. Lawyers are trained to qualify any response they give to such questions as to their lack of specific knowledge. They can be sanctioned for malpractice for giving advice which is incompetent. Thus, I usually make it known that any answer is largely my off the cuff opinion, that I am not giving official advice unless retained to do so, and that any further explanation will require research. This generally gets rid of most inquirers. Usually their questions aren’t important enough to spend money answering.
My civil procedure professor in law school told us the answer to any legal question, initially, is always, “it depends.” As a first year student, in a class that doesn’t begin to make sense until the end of the semester, this statement was perplexing. It is entirely correct though.
(Uhhhhh…weeeellll. Google Images.)
“It depends” is a fancy, professional way of saying, “I don’t know.” Most attorneys don’t know the answer to most legal questions, even in areas they specialize in. To begin with, the law is such a vast, confusing, and constantly changing field, it is completely impossible to know everything about anything. That senior lawyer with the “encyclopedic knowledge” of the law from the Tom Hanks’ movie, Philadelphia, resides on the silver screen and nowhere else. Next, the facts presented by a particular person’s circumstances may differ from any other set of facts conceivable. Think of laws as wrenches and facts as pipes; a lawyer is like a plumber, applying different wrenches to different pipes. Most importantly, cases in court will ultimately have conclusions which cannot be foreseen, let alone guaranteed. Any lawyer who guarantees an outcome is a liar and should be avoided.
I have won cases I knew I was going to loss. I have lost cases when I should, by all rights, have won. Judges are as fallible as any other human beings and juries are like living roulette wheels. Jurors are often influenced in their decisions by things completely unrelated to the case they’re reviewing. As a prosecutor I once lost a DUI case just because the jury did not like the way my arresting officer presented himself on the witness stand. They agreed the law applied to the defendant and the defendant’s actions qualified under the law as clear indications of guilt. However, the officer kept yawning on the stand and the jury felt he wasn’t interested in the case and didn’t try to convince them of the State’s position.
(Not a good day in court. Google Images.)
That particular officer was well-seasoned and knew his job. Unfortunately for me, he had just come straight into court from the night shift and was focusing most of his energy on staying awake. I did not foresee that and there was nothing I could do about it. As a consolation prize, I did win on the related minor parking charge. The judge informed the very happy defendant he had dodged a bullet. Chance leads to many dodged bullets in the law, and bullets that sometimes find innocent victims.
Usually an experienced attorney, once familiarized with the case in full, has a pretty good idea as to what will happen. The attorney can relay this confidence to his client. However, for the reasons I just gave, no attorney should ever declare even the most trivial matter a slam dunk.
In my article Legal Education I noted that law schools primarily teach worship of court decisions and legal research methods. While it’s impossible to know all the law, it is quite easy for a skilled practitioner to look up and educate himself on any given subject. I’ve had clients call, upset about “research” charges on their bill. I always stand by these fees, so long as they are reasonable for the given case. Doctors do extensive research before they cut a patient in surgery. Lawyers are no different.
Like doctors, lawyers sometimes feel the need to associate expert counsel to assist with a really complicated area of the law. Once a client came to me in a tizzy over a copyright infringement case which had been filed against him in federal court. As the case was in a district where I do not normally practice, and after a cursory review of the maze of intellectual property laws, I concluded justice required me to hire another attorney from a giant Atlanta firm for assistance. This was a very costly decision for the client. In the end, though, the money was well spent. I would draft the responsive pleadings to the best of my ability and with the client’s in-person co-operation. Then I would email the drafts to the expert for touch-up and filing.
As a result we were able to re-open the case and have a default judgment set aside as unjust. Then, we removed the case to my area (where the client lives and operates his business). There’s something to be said for home-field advantage. We even got the “foreign” district judge to issue a scathing censure against the opposing counsel for his obnoxious behavior in the case! That had the dual effect of making me and my expert look good and it took the slimy steam out of the other guy. He was fired shortly thereafter. In the end, we wrangled out a terrific settlement for pennies on the dollar out of the whole ordeal. It was good work of which I am still proud.
Don’t be taken aback if your attorney reveals she isn’t familiar with the topic you present. Such revelation is the mark of honesty. Be ready to spend time and money on an investigation which may end up disappointing you. It’s better to be told your case does not have merit or is unwinnable in the beginning, rather to discover such at a trial.
Remember, the advice I’ve given here is merely legal education for the lay audience, not exact legal advice. If you have a specific case, you should consult a specific attorney. Based on the subject and how your facts fit the law the outcome may be difficult to predict and will require some degree of research and work to resolve. As for what I could tell you right now? It depends.