On Behalf of | Feb 26, 2019 | General

Lawyers practice law, so to understand lawyers we need to know what law is to them. I’m not proposing to enter the extensive academic debate about what law is or where it comes from.That’s really not all that important to practicing lawyers. What we need to understand is what the law is from the lawyer’s perspective.

A story from early in my career shows how the law works. I was an associate at a big law firm practicing bankruptcy law. I was working with a partner, and we represented a bank.Our client was in a dispute with another bank. I don’t remember what the dispute was, but it doesn’t matter now. The partner had told our client that we would prevail in court. He gave this advice based on a legal argument he had used successfully in some earlier cases. The only problem was that the facts of our case did not work like his earlier cases. When I started looking at our case, it seemed that we should lose because his argument didn’t work on our facts.

The partner and I then faced two choices. We could admit defeat and give up, allowing the other bank to win.But giving up is hardly ever an option in legal disputes. Clients pay lawyers to win. So we had to pursue a second choice, find a way to characterize the law and the facts so that we had a winning argument.

Now, I must tell you that the lawyers for the other bank were—with some justification—very smug in their belief that they would beat us. Settlement was not a possibility, especially since the partner I was working for had flat out told our client that it would win. So it was off to the law library for me in hope of discovering how the law and facts could be cast in our favor.

After several days of carefully reading and sometimes distinguishing cases, I came up with a supported legal argument why the partner was right after all. As the parties moved to summary judgment motions in the bankruptcy court, our opponent stopped being so smug. My argument, based on the facts and an argument about the law had legs. Unfortunately, though, the bankruptcy judge disagreed and found for the other bank, but we threatened an appeal to the US District Court. At that point things changed, both sides saw reasons to negotiate for settlement. The opposing bank was not so sure it would win, and our client realized that there never are any certainties in litigation. Like most cases, our case ended in a settlement without having to go to the district court.

The case I just described is pretty typical, and it teaches the following four lessons about how practicing attorneys see the law:

  1. Law is a framework on which arguments are built;
  2. Law is a tool for constructing arguments based on the facts of each case;
  3. Law is dynamic and can be shaped and re-shaped as the case develops;
  4. To lawyers, there is no such thing as a static, formal “law.” Law is to be used to achieve results.Here, a settlement.

In any particular case, lawyers can find themselves arguing what the law is, using legal analysis to shape the law to their client’s advantage, or they can find themselves arguing about how the facts of the case should be applied considering the mutually agreed on rule of law. The fundamental point is that “law” does not exist as some great edifice that prescribes results. Instead, it is a tool for constructing opinions and arguments that persuade decision makers.

So, does that mean that the law does not exist?  No.  But the law exists as a framework within which uncertainties exist that allow for the creation and structuring of arguments. Often, once those arguments are decided one way or another, the framework is modified and gives rise to other arguments about the extension or meaning of that law.  In this way, our society is one of law, not authoritarian prescription.  At my law school, Cornell, there was an inscription in the moot court room that said something like”the law must be certain but can never stand still.”  This framework is the space in which lawyers operate.

About Foundation In Law

Foundation In Law

Over a long career as a practicing attorney, Frank Hammond came to realize many prospective legal clients do not know much about lawyering and lawyers – how they work, how fees are set, and how to deal with them. Beginning attorneys also often have little notion of what actual practice involves. This blog is meant to be a guide for both.

Disclaimer: The Foundation in Law blog is not intended to provide legal advice, and no attorney-client relationship will arise as a result of interacting with this blog. You are advised to consult with your own attorney regarding legal questions. The opinions expressed in this blog are those of the author alone. The author is licensed only to practice in the State of Oregon.