Dealing with defendants in state court, charged mostly with standard street crime of the malum in se variety, it’s common to expect the client to demand answers of his attorney, the most notable being “what’s going to happen?”  While the obvious response is that we never know, lacking the ability to see into the future, it’s a very unsatisfying answer.  Clients want to have a clue of whether they have a chance or are dead in the water.  Naturally, they are happier to hear the former.

One underlying problem is the lack of tolerance for ambiguity.  We can explain how the various pieces of the puzzle fit together, or should fit together if things go according to plan, but there are always variables that defy our prediction.  Trying to handicap the outcome is a dangerous endeavor, often leading to discontent and recriminations later.

But the client doesn’t care at the time of the inquiry.  Many of our clients lack formal education, or at least much of it, and have a remarkably low tolerance for ambiguity.  Their world consists of concrete things, things that can be touched, seen or felt.  Things either are or are not; they refuse to allow voids to exist because it disturbs the clarity of their world.  It’s understandable.

The problem is that my inability to provide a concrete answer to their question leaves them to arrive at their own conclusion and attribute it to me.  I tend to be fairly cautious and explicit in my discussions of outcome with my clients because of my concern for being as truthful with my clients as possible.  Others differ.  Yet I still hear the subsequent refrain, “but you said . . .”  even though I didn’t.  It doesn’t bother me that this happens.  I expect it and tolerate it. It’s the nature of representing criminal defendants.

What surprises me, however, is that this lack of tolerance for ambiguity has reared its ugly head here with shocking frequency in the comments received from young lawyers.  Most are lawyers, so lack of education can’t be the problem.  Or can it?

My observation is that they engage in pervasive assumption to fill the gaps in information, but do so without the slightest recognition of what they are doing.  Gestalt explains this phenomenon to some extent, but fails to address the fact that once they assume, they argue to the death the validity of their assumptions.  Even when confronted with facts to the contrary, their belief in the infallibility of their own assumptions persists.  What’s with that?

It’s of little real consequence when this happens on something as innocuous as the comment section of a blog.  After all, it’s just sound and fury, soon to drift to the bottom of the page and be forgotten.  Sure, tempers flare on occasion, and foolish words are written, but one need only ignore it for the feelings to fade away.

What’s more significant is that this abiding belief that these young lawyers maintain in their own assumptions.  If they do this on a blog, do they do this when representing their clients as well?  I fear they do.  There are few things more dangerous for a lawyer to do than assume facts they don’t possess, and act upon them as if their assumptions were real.  We are forced at times to fill in voids in our information, but must recognize that these are mere assumptions, of dubious worth and subject to change as better information becomes available.  We can never afford to get stuck on our own assumptions.  This is not tolerable.

Having given this some thought, I wonder why this remains true after the completion of three years of law school.  Regardless of what insanity drives them to be so protective of their assumptions, one would think that law school would teach them to think like a lawyer, part of which is to appreciate and gain a tolerance for ambiguity.  Is this a by-product of the Socratic method falling into disrepute, or of the lack of critical reaction by lawprofs?  It’s hard for me to say, not having sat in a classroom for a number of decades.  From what I hear, no one is ever wrong anymore.  They are just “differently right.”  Of course, that comes to a complete halt with the first judge they meet head to head, a very tough lesson indeed.

Encouragement and positive reinforcement are certainly important pedagogical tools, far more likely to motivate a student than criticism.  Yet, there are indulgences that are inherently dangerous to a lawyer, or more precisely, the client.  The lack of tolerance for ambiguity is one, and it appears that there is an abundance of tolerance for this lack.  It’s got to stop.  No matter how smart or self-absorbed a young lawyer may be, she cannot be allowed to believe that her assumptions take on the value of fact simply because they pop into her head and she believes them to be valid. 

Ironically, I fully expect the people who have demonstrated the greatest inclination toward assumption to be the first to deny or defend it.  And I shudder at the implications for their clients.  I hope somebody teaching law school gives this some thought.