Why Can’t They Say “Yes” or “No”? Understanding How Lawyers Talk to Business People (Part 1 of 4)

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.

This four-part series highlights four situations in which the legal system’s subjective and arbitrary character constrains your lawyer from answering “yes” or “no”:

Situation 1. Where lower courts disagree with each other’s rulings — and a higher court has to step in to resolve their differing judgments.

Situation 2. Where a higher court overrules a lower one, and the lower court 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 judgment.

Situation 3. Where a judge’s personal idiosyncrasies distinctive, well-informed perspectives may drive the outcome more than an objective view of the law or evidence.

Situation 4. Where your own lawyer has a chance to mitigate the legal system’s subjective or arbitrary elements with can-do, solution-oriented problem solving — or present a professional facade that masks timid, self-protective risk aversion.

Situation 1. Where lower courts disagree with each other’s rulings — and a higher court has to step in to resolve their differing judgments.

Example:

Your human resources leader wants to prevent some legal trouble before it happens — and asks your lawyers:

Can we use a mandatory arbitration agreement –signed by employer and employee — to keep our employees from bringing class action lawsuits against our company under the federal Fair Labor Standards Act’s wage-hour provisions?

… 

Before the U.S. Supreme Court stepped in on May 21, 2018 to answer this question with a “yes“, the federal circuit courts of appeal — one rung below our highest court in the judicial pecking order — ruled on this question at the following times, in the following sequence, and with the answers indicated:

Eighth Circuit (Four Midwestern states plus Arkansas), January 7, 2013: Yes.

Second Circuit (Three Northeastern states), August 9, 2013: Yes.

Eleventh Circuit (Three states in the Deep South), March 21, 2014: Yes.

Fifth Circuit (Six states in the Deep South), October 26, 2015: Yes.

Seventh Circuit (Three states in the Midwest), May 26, 2016: No.

Ninth Circuit (Nine Far West States plus Guam), August 22, 2016: No.

Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee), May 26, 2017: No.

For more than a half decade before the U.S. Supreme Court’s May 21, 2018 decision, an employment lawyer advising any company located in the U.S. had to at least qualify their “yes” answer as “iffy”.

Then when the Sixth, Seventh, and Ninth Circuits issued their “no” rulings between 2016 and 2017 — this qualification would have had to be changed from “iffy” to “jump ball” for businesses located outside the Sixth, Seventh, and Ninth Circuits. For businesses inside those circuits it would have been an outright “No” — until the U.S. Supreme Court stepped in with its “yes” on May 21, 2018.

And as we’ll see in the next post, an answer can still be “iffy” even after a definitive ruling by the U.S. Supreme Court.

In Part 2, I describe how a lower court ruled in apparent defiance — as other attorneys and I see it — of a recent, seemingly clear decision of the U.S. Supreme Court.