How lawyers think
We as a society know too little about lawyers. We believe some myths about lawyers (for example, that they are rich), but we know little truth about them. It’s pretty strange given the two critical things lawyers do in our society: ensure access to justice and help regulate behaviour. The good news is it’s easy to learn the basics of how lawyers think, which empowers you in dealing with your lawyer and as a citizen.
The basic premise of legal reasoning is that it’s all about the courts. Everything lawyers do is about predicting the outcome of litigation that may or may not happen (at least in common law countries like Canada). That is ultimately the only thing lawyers do even though it may look like your average lawyer is busy with a million other roles. It’s clear that litigators think about litigation, but the other kind of lawyers—those who draft or vet contracts, wills, letters and applications—also always have the courts in mind. The difference is that the litigators already have a dispute on their hands, and non-litigators go out of their way to prevent a dispute.
Courts have the power to review any private or government action and decide if it’s legal. Our courts’ rulings are binding on all parties to the dispute, even the government. Because our courts are independent and have constitutional powers, anyone can sue anyone else including the Prime Minister and have a fighting chance. This is called the rule of law, and that’s why we have so many lawyers.
Good lawyers try to think the way judges would think because lawyers have only two purposes: to prevent litigation and to win in litigation. It’s all about the courts in our legal system. In my previous essay, I asked a question about inalienable rights in Canada. It was a legal question. Its purpose was to figure out if there was any way for Canadian courts to uphold taking away of all Charter rights. I concluded that courts could technically do that, and that’s why my answer was that there were no inalienable rights in Canada.
My reasoning wasn’t political: I didn’t look at the balance of power among political parties or their inclination to attack Charter rights. It wasn’t economic: I didn’t crunch numbers to see when Canadians could no longer afford Charter rights. It wasn’t social: I didn’t look at what groups in our society would take what position on the issue. My reasoning was legal: I tried to predict what arguments could convince judges to allow the elimination of Charter rights.
The legal argument doesn’t take politics or economics into account but it’s still powerful because the courts have huge power in Canada. Court will listen to economic and political arguments (they are called policy arguments), especially in constitutional cases. But I assumed in my previous essay that the country must be in an emergency politically and economically for the extreme legal argument against Charter rights to succeed.
So lawyers always try to predict what the courts will say, even when the police or a government ministry will most likely resolve the issue. In some areas, such as immigration, government officials have enormous discretion, and the courts often trust their judgement. In those cases, the lawyers certainly try to predict what the government official will decide, but even in those cases, lawyers know that every official is subject to judicial review. The government understands this too, and it certainly limits how far agents of the state go in their discretion. So the courts are still in the picture, at least because they leave the government alone. But they can pull the leash quickly if the government oversteps its bounds or if the courts change their interpretation of how much they should trust the government’s judgement in the given area.
Lawyers (at least when they earn their keep) think like judges. A good legal argument resembles a judicial decision that a judge could almost copy in potential litigation. And even lawyers who draft contracts and wills think about the courts, because they try to describe their clients’ rights in words that no judge will question. That’s why Mr. Burns’s lawyer said “this should hold up in any court” handing his boss yet another evil contract in one of The Simpsons episodes.
Knowing that lawyers think in terms of disputes in courts can empower an ordinary citizen. First, when you go to court without a lawyer, you will know that you really should get one, even if it’s a law student. The courts are the be–all and end–all, and you need someone who knows what judges want to hear. Second, if you have a lawyer, it will be easier to see if he is doing a good job. Try to think of future disputes over your contract or will, and see if your lawyer is taking care of that in the text. Finally, you should know about the power of lawyers and judges because the courts are the only unelected branch of power in Canada, and you as a citizen should know why and how the system works and how to make sure it continues to work in the future.
Further reading: Frederick Schauer, Thinking like a Lawyer: A New Introduction to Legal Reasoning, (Cambridge: Harvard University Press, 2009).
(Post sponsored by AdviceScene)