Managing Legal

THE POINT

This series is about how the legal system’s subjective and arbitrary character constrains your lawyer from answering “yes” or “no”.

Sometimes your lawyer doesn’t want to be pinned down to a definite answer, and you, as the business client, need to nudge him or her for some specificity.

DISCUSSION

In this fourth post I address the ultimate “human factor” in the law: All legal advice and representation comes to business owners and executives through attorneys.

You see, attorneys are people (fill in your own lawyer joke here).

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On my first visit to Paris I found myself at dinner with Dr. H. — a family friend and Princeton PhD in physics — a senior official with the Paris-based Nuclear Energy Agency of the Organization for Economic Cooperation and Development (OECD). He peppered me — a newly minted lawyer with a New York firm — with questions about my work.

“You see, Dr. H., the legal system is riddled with subjectivity. It’s all about opinions — of judges, of regulators, of legislators, of disputing attorneys, of lay people acting as jurors.

“Unlike your discipline — there’s no empirical test by which to evaluate whether a judgment is valid or bogus. It’s nothing like nuclear physics, where a consistent scientific focus guaranties objectivity.”

[Cut me some slack here. I was 26. I had everything pretty much figured out, and saw everything in black and white. As I aged, I came to know less and less, until I became the dumb guy whom my kids will tell you they met upon their arrival in the world a few years later.]

Dr. H. (patiently) replied:

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THE POINT

This series is about how the legal system’s subjective and arbitrary character constrains your lawyer from answering “yes” or “no”.

This post addresses the situation where a higher court has ruled on a specific point of law, but the judge presiding over your particular case doesn’t like that holding — and finds a way to avoid abiding by it.

DISCUSSION

One of this blog’s goals is to help business owners and executives to make better management decisions through a practical understanding of how the law works.

This post is the second in a four-part series in which I explain how the legal system can prevent lawyers from giving a “yes” or “no” answer to questions about whether or not a particular management decision will create legal problems.

Because the legal system is based on human decision-making — while scientific “laws” are not.

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Consider the following circumstance:

A higher court overrules a lower court, and the lower court then throws a judicial tantrum and refuses to follow the higher court’s holding offers a principled argument for why the higher court’s ruling does not apply.

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THE POINT

This series is about the how the legal system’s subjective and arbitrary character constrains your lawyer from answering “yes” or “no”.

This post addresses the situation where lower courts disagree with each other’s rulings — and a higher court will need to step in to resolve their differing judgments. But meanwhile business executives need to make decisions.

DISCUSSION

One of this blog’s goals is to help business owners and executives make better management decisions through a practical understanding of how the law works.

This four-part series takes up the question: Why can’t my lawyers say “yes” or “no”? Why can’t I get a straight answer?

With all my attorneys’ conditions and caveats — how can I make a business decision?

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My own answer:

Lawyers give guidance based on what the legal system has decided … so far. That legal system is made up of people. And any person’s judgment contains — to a greater or lesser extent — a subjective or arbitrary element.

Put another way: What lawyers tell you lacks the objectivity we associate with physics or chemistry — due to the human factor.

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