The Law, From the Cheap Seats

In the comments to my post about Stern v. Bluestone the other day, Josh King, Avvo’s general counsel, posted :

Another takeaway from this is the reminder of just how limited the concept of “commercial speech” is. Only advertising-centric speech qualifies; only narrowly-tailored rules can constrain it. Despite efforts by the NY state attorney licensing bureaucrats and others to expansively sweep all manner of attorney speech under the rubric of “attorney advertising,” there is a very real limit to their ability to do so. Something to keep in mind for lawyers who are concerned that their blogs need to comply with bar advertising rules.

In my ever-so-delicate manner, I replied to Josh that he was correct as of that writing, but he would have been wrong a week earlier.  Josh responded that “[i]t’s been the law for almost 30 years.”  This statement reflects one of the fundamental differences between litigators and non-litigators.  Litigators see the contours of the law as ever-changing, the edge in a constant state of flux.  Non-litigators see “The Law,” a firm and stable monolith of right and wrong, totally dependable, fixed and clear.

So why are all those lawyers and judges wasting their time in court?

This is a difference in perspective.  I don’t disagree with Josh’s take, that it’s what the law “is” if one views the law as a constant.  But trial lawyers rarely see the law as stagnant.  Certainly, there is black letter law, issues conclusively resolved and reliable, but even these have a nasty habit of getting mangled in application.  It’s a lot easier to be certain when it’s not your job to get the right judgment.

It’s long been something of a sore point with me when I engage a non-litigating lawyer in discussion over a disputed issue.  These are the people you chat with when there’s a problem with a government agency, a corporation, any entity that has a lawyer “advising” them.  These are lawyers who sit behind desks and opine to non-lawyers, explaining in somber tones what the law “is”.  When they talk to litigators, they do the same, telling us how they “see” the law.  It makes me cringe.

It’s not that they’re necessarily wrong (though they often are), but that they have this simplistic view of the law, as if whatever it says in the textbook must be true.  Try achieving a resolution of a dispute with a guy who firmly believes that he knows the law, that there can be no disagreement and that he’s absolutely right.  Only after a bunch of years and a ton of money will they come to realize that, maybe, just maybe, they were wrong.  What would be funny if it wasn’t so sad is how they are shocked to learn of a crushing verdict when they were so certain of their correctness at the outset.

The problem with getting a firm grasp on the law is tolerance for ambiguity.  Non-litigators are expected to know the law and be able to render opinions to non-lawyers as to what they can and cannot do.  Nobody wants to hear a recitation of variables, but a bottom line. Is this right or wrong?  That’s their job, and they do what’s expected of them.  Whether they know in their heart that their very serious opinions mean nothing in the face of litigation is another matter.

Litigators, on the other hand, must have enormous tolerance for ambiguity, knowing that any case can be lost and the law is rarely, if ever, clear.  Certainty, to a litigator, is a fairy tale for children. 

So while Josh can blithely state that free speech for lawyers has been the law “for almost 30 years,” I have to chuckle.  Josh’s opinion turns out to be right.  It took a litigator to win the case make it so.