RSS FeedThe purpose of blawgs
More than a year ago I wrote a post entitled “How lawyers think.” Its basic idea is that a lawyer’s job is to maximize legal protection of his client’s rights. Protecting rights means either of two things: one, letting the world know what your rights and their legal basis are, and, two, getting a court or tribunal to change the mind of someone who disagrees. Lawyers predict what kind of rights the courts will find that you have if it comes to litigation. That’s called giving legal advice, and that’s why lawyers think by imaging what would happen if this issue gets to court and how courts have decided similar issues in the past. All lawyers think about courts whether they are in litigation or not, and the courts is where the law becomes the law.
The previous sentence means that an act of Parliament is not really the law until the courts have adjudicated a dispute about what the specific legislative act or its provision means in a specific case. If all people understood the same text and applied it to the same facts the same way, we wouldn’t need courts. Lawyers predict what the courts will say the law is for the given facts, and litigators, in addition to that, offer judges their theories of what the law is in a given dispute. So advocacy in court is trying to influence the judge’s vision of what the law is and of how to apply it in this particular case. Without impartial and binding adjudication of disputes by the courts, the law is only what the strongest party (the police, the employer, the rich, and so on) says it is.
So if lawyering is predicting how the courts or tribunals will apply the law to a particular situation, blawging, in my opinion, is the same thing but by way of informal and accessible writing in a blog. A blawg should predict what the law is in some interesting case of current interest. A blawg is always a legal opinion, but it’s almost never legal advice, because it is addressed to a broad audience rather than a client. If I write about telephone number portability, the blog post should give a basic idea about what enforceable rights you will have if your telephone company decides to take your phone number from you. A blawg is not about what will happen, but rather about what you can reasonably accomplish by taking your case to a court or tribunal, if you have the time, the money, and the expertise.
In this sense, blawgs can be a little removed from reality because most people don’t have the time, the money, and the expertise to go to court. In fact, of those who do begin litigation, most never sustain it all the way to trial, which would be the first chance a judge will get to decide the case. That’s why lawyers, of course, must give practical advice in addition to pure legal advice, and it’s hard, and that’s why there is a disconnect between the public and lawyers. The client expects a solution and doesn’t care about the method, and the lawyer often must think in terms of courts because that’s all he or she may be qualified to do.
Perhaps blawgs can bridge this gap by educating the public about the law and teaching the public to self-regulate due to better knowledge of legal consequences. But unless we make access to the courts cheaper and easier so judges can hear and decide more cases that deserve to be heard and decided, blawgs alone will face an uphill struggle.
Pulat Yunusov is a Toronto litigation lawyer.
(Post sponsored by AdviceScene)
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)
Link to Precedent Magazine Article
I have written an opinion piece on the relationship between police officers and lawyers for Precedent Magazine.
It can be found on page 17 of the Fall 2009 edition or via this link:
Please check it out and we welcome comments. Thank you.
An absolute beginner’s guide to free online marketing for lawyers
Don’t you cringe when you hear marketing and lawyers in the same sentence? Didn’t you go to law school instead of an MBA program so you never had to deal with marketing or sales of some sort? That may be true, but I am afraid you’re stuck with marketing as long as you have or need clients. The good news is the Internet and social media can take both the stigma and the pain out of the process. It works, and it is often absolutely free. You just need to know some basics.
Let’s assume you’re not Edward Greenspan or Abraham Lincoln. You’re interested in reaching out to three groups: clients, potential clients and colleagues. You know how to use the Internets, and you don’t mind some publicity. Before you go any further, remember: choose strong passwords and use some password management software. That should keep you reasonably safe from identity theft. Finally, have an open mind and grow a thick skin. Some people on the Internet have a foul mouth. Beyond these simple warnings lie huge online marketing opportunities.
The power of free online marketing is in social media. Here is how it works. Social media is a way to publish messages for a circle of followers. If some of these followers have their own followers, you all form a network. When your message reaches your circle, one or more of its members can pass it on. It’s exactly how rumours spread in small towns. But social networks are bigger and faster thanks to instant and massive online communications. Some celebrities have online circles consisting of hundreds of thousands of people. Imagine the PR possibilities. And the media is social because online audiences themselves do a lot of heavy lifting in spreading the message.
That’s exactly how sites like Twitter work. You get your own page. You can post short messages on it. If you get someone to care about it, they can subscribe to your updates. You can subscribe to other people’s updates. Each subscriber can scroll through a page consisting of updates posted by his or her circle. If a message is interesting enough, it can propagate through the network reaching awfully many people. All for free. You just need to get the community to care. Facebook and LinkedIn are similar, but they used to focus on building online people networks. Now they imitate Twitter by encouraging members to post updates. Social media works because millions of people are on these sites typing away or reading every minute of every day—millions connected into a network.
Every message on the Internet that matters works like this today. Forums, blogs, good old websites, you name it. Unless the message gets into social media, it’s probably lost. I am not talking about paid advertising of course. That’s an exception, but you probably already know that money can buy you eyeballs. If you don’t want to spend a lot of money, social media can help you.
Take blogs, for example. A blog (click for an example) is just a webpage where you post articles on a regular basis. It usually looks like a sequence of postings sorted in chronological order. Often authors allow readers to post comments or questions under each posting. Twitter postings are similar to blog posts, but there are two important differences. First, your posts on Twitter must be 140 characters or less. There is usually no length limits on blogs. Second, Twitter organizes readers into a cohesive community making it easy to pass on posts (tweets) through the network. The length limit also simplifies spreading a message through the community. Shorter messages on average probably have higher chances of being read than long blog posts. Remember, the key to social media is the speed and the reach of your message.
Forums are one of the oldest methods of online discussion and content distribution. A forum (click for an example) is a webpage with a list of topics. Each topic is a link to another webpage with a list of posts on this topic. Each post is also a link leading to a page that contains responses to the post. That’s how people talked online fifteen years ago. That’s how many of us still talk today. Unless the forum is members-only, anyone can choose to check the postings. But you have to scroll through all of them to see if anything interests you. Then you can choose to respond. If you are interested in several forums, you have to check all of them regularly. There is no circle trusted to post only what interests you. You have to sift through the content yourself. But some forums are so popular that this is not an issue.
(to be continued)
AdviceScene Offers Free Legal Info from Practicing Lawyers
LawIsCool has recently begun a partnership with AdviceScene.com. The site is an online forum that provides resources to both lawyers and members of the lay public.
Founded earlier this year by Nancy Kinney, an entrepreneur with a law background, AdviceScene aims to provide a “fully moderated, social networking community linking lawyers and the public to provide a free and democratic exchange of legal information.”
A key difference between other legal forums and AdviceScene is that AdviceScene provides legal information from actual practicing lawyers; answers don’t come from anonymous sources.
According to Kinney:
“The site offers lawyers a credible method to join the online world of public discussion on legal matters in a manner that conforms to their professional code of ethics.”
The site also assists lawyers that want to contribute legal information online by providing FREE marketing services such as a free lawyer directory, free banner ad, free profile in the monthly newsletter, and soon free website templates, including free search engine optimization (SEO) and hosting.
As an added bonus, AdviceScene Enterprises Inc. donates 5% of gross advertising revenues to pro bono legal services societies.
