Articles Posted in Understanding How the Law Works

In Part 1 of this two-part series of posts, I described — how “judges’ personal foibles and idiosyncrasies — I mean their distinctive, well-informed, jurisprudentially ingenious perspectives — can drive litigation outcomes more than any objective view of the law or evidence would seem to warrant”. 

From there I compared the relatively new (circa 2006) legal analytics technology to a courtroom grapevine that colleagues and I used in the Manhattan District Attorney’s office in the 1980s to ascertain such personal foibles and idiosyncrasies when our case was assigned to a particular judge for trial.

By this time legal analytics is old news — at least among the largest law firms and for specific categories of major business litigation. But recently this technology has moved beyond just big cities and elite law firms to Main Street and to small law firms.

Witness the example of Gavelytics’ announcement a few weeks ago.

Gavelytics — the legal analytics company — announced a new partnership with a company called “CourtCall”. In my own courtroom experience, CourtCall has functioned as a conference call service — just that this one involves judges and is deemed a formal court appearance for the participants (there’s a video offering feature too apparently).

My first experience with CourtCall came when I had a case in a small city. Until then, my experiences doing conference calls with judges and lawyers — in place of an actual visit to the court — had been confined to the well-equipped federal courts, who have their own, ample facilities for such things.

The fact that Gavelytics has partnered with CourtCall tells me that this legal analytics offering is not confined to big cities and elite law firms. It’s now coming to small cities and small law firms.

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In a recent post I wrote that judges’ personal foibles and idiosyncrasies — I mean their distinctive, well-informed, jurisprudentially ingenious perspectives — can drive litigation outcomes more than any objective view of the law or evidence would seem to warrant:

“My introduction to this came when I was a prosecutor in Manhattan. When my colleagues and I brought a felony case we knew all of the personalities among the judges on the trial court to whom that case might be assigned.

“And our prosecutors’ grapevine functioned well. We had either firsthand experience — or readily available, reliable accounts of a professional colleague — to inform the way we argued law or handled evidence before any particular judge.

“Some judges tended to disbelieve police testimony. Others would never impose a greater sentence than the law absolutely required. Some were meticulous on evidentiary objections. Others were relatively loose on such rulings. Some were temperamental. Others were reasonable.

“Learning the judge’s personal idiosyncrasies was always my first order of business when I was assigned to a particular judge for trial.”

This is the outlook of every lawyer assigned to try a case before a particular judge: Who is this person who’ll be calling the shots on my case, and how have they handled cases like the one I have before them now?

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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).

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:

“Joel, you might be surprised at how little ‘objectivity’ there is in our field.

“My French colleagues will tell you about the need for a robust nuclear energy as the basis for a strong economy. They’ll minimize operational hazards.

“While my German colleagues will emphasize the dangers of nuclear energy — though their country maintains its own nuclear plants. But you’ll wonder if you’re talking about the same industry as the French have described to you.

Despite the nuclear industry’s empirical and scientific roots — what you’ll hear about it depends largely on who it is you’re talking with.”

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In the third of this four-part series, I address another situation in which the legal system’s subjective and arbitrary character constrains your lawyer from answering “yes” or “no” to your questions.

Consider the following circumstance:

A judge’s personal idiosyncrasies distinctive, well-informed judgments may drive the outcome more than an objective view of the law or evidence.

My own introduction to this came when I was a prosecutor in Manhattan. When my colleagues and I brought a felony case we — collectively — knew all of the personalities among the judges on the trial court to whom that case might be assigned.

And our prosecutors’ grapevine functioned well. We each had either firsthand experience — or readily available, reliable accounts of a professional colleague — to inform the way we argued law or handled evidence before any particular judge.

Some judges tended to disbelieve police testimony. Others would never impose a greater sentence than the law absolutely required. Some were meticulous on evidentiary objections. Others were relatively loose on such rulings. Some were temperamental. Others were reasonable.

Learning the judge’s personal idiosyncrasies was always my first order of business when I was assigned to a particular judge for trial.

In the last few years lawyers and code-writers have begun to create — via software — what my prosecutor colleagues and I had by word-of-mouth.

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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.

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 an argument for why it need not abide by the higher court’s ruling.

In Kindred Nursing Centers, L.P. v. Clark, decided May 15, 2017, the U.S. Supreme Court — reversed and vacated the judgment of the Kentucky Supreme Court — in which the Kentucky Supreme Court had refused to enforce the parties’ agreement to send any disputes to arbitration — rather than have them handled by a court.

In overturning the Kentucky Supreme Court’s judgment — 7-to-1 — the U.S. Supreme Court had ruled:

“The Federal Arbitration Act … preempts [makes invalid] any state rule discriminating on its face against arbitration … And … also displaces any rule that covertly accomplishes the same objective by disfavoring contracts that (oh so coincidentally) have the defining features of arbitration agreements.”

Plain English: We’re telling all lower courts to enforce arbitration provisions according to their terms — just as they would any other term in a contract — because the Federal Arbitration Act says they have to do so.

Then the U.S. Supreme Court sent the case back to the Kentucky Supreme Court to do just that.

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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?

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.

My qualifications required law school, licensing by state and federal courts, then years of analyzing cases, statutes, and regulations, then years of arguing to judges and juries in courts, and then years of negotiating deals.

So I’d like to think that I offer business clients more than my self-indulgent whims.

But it’s not empirical science.

Yet every business client wants actionable legal guidance — advice on which they can base decisions — despite the effect of individual quirks and biases within the legal system.

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