Is Law An Effective Way To Analyze And Solve Problems?

Many lawyers view themselves as problem solvers..

Introduction

It may seem strange to most people, but many lawyers consider themselves to be problem solvers. Some people go into law hoping to improve their analytical and rational decision making skills. There is some justification for that view; law school does encourage students to spot issues and to apply concepts from one area of law in another. Yet legal system's method of problem solving is very different than the ones advocated by other experts on human relations, like psychologists, sociologists, and economists.

Legal analysis is often not the most logical way of making decisions. In many situations, judicial decisions resolving disputed or unclear law are really policy decisions, yet they are approached by asking what the state of the law is, rather than what objective the parties wish to achieve. The result is that the decisions are made based on semantic games and by following prior cases decided under different circumstances. Legal rules developed through precedent are sometimes based on a few outlier cases that were unusual or novel enough to result in written court opinions, rather than the far more common situations that never result in written opinions. When resolving factual disputes, many aspects of our litigation system give an advantage to those who have greater access to the underlying facts, and can use this information to outmaneuver opposing counsel.

I. Questions of Law:

Where law is clear:

In many situations the relevant law is sufficiently clear or opposing parties do not wish to dispute it because not much is at stake. Here, determining the applicable law is more of a mechanical task and doesn't involve as much legal analysis. Certain areas of law like taxation tend to be clear, while other areas like state tort law have less defined concepts like negligence and reasonably foreseeable harms.

Resolving Unclear or Disputed Law Often Requires Policy Making

The bulk of legal analysis occurs when the applicable law itself is in dispute. Other cases involve disputed questions of law. The law may be unclear because there is no source of law directly relevant to the matter, or because there are multiple sources of law that conflict in some situations.

These situations often arise because legislators and judges cannot foresee every possible scenario that may arise sometime in the future, nor can they anticipate the surrounding circumstances that lead to each situation. It is not possible to know the consequences of each course of action, and what policy arguments may raised for or against it. Different judges and different legislative bodies may have conflicting policy goals, and final decisions often reflect compromises. Therefore, when a judge is asked to decide whether statute X or statute Y controls, or whether an administrative regulation on matter X supercedes prior caselaw on matter Y, he or she must engage in a certain degree of policy making.

The Courtroom of the US Supreme Court. Appeals courts and Supreme Courts decide mostly questions of law.

US Supreme Court Courtroom

Spotting Outside Issues and Policy Concerns Is a Useful Skill

Law students and lawyers are trained to spot issues that they could raise or the other side might argue. They are trained to find abstract yet useful relationships between seemingly different topics. For example, a concept from patent law could be relevant to a copyright case. To some extent, this method of thinking also helps lawyers appreciate policy concerns that may typically arise in another area of law.

Some law students and lawyers remain generalists. Others get very specialized and have more difficulty valuing concerns beyond their their area of expertise and their clients. This overspecialization problem is similar to a classic medical scenario, where a patient has some unknown ailment. Each specialist wants to diagnose the patient with something from within their specialy, discounting the opinions of other doctors. Lawyers who specialize in areas like tax, ARISA, or patent law sometimes get so absorbed by their area of law that they can become oblivious to other legal concerns.

Why Using Legal Analysis To Make Policy Can Be Problematic

One problem with the policy making inherent in legal analysis is that the decisions are based on or justified on other grounds. When making (non-law) policy, business, or personal decisions, most people figure out what their objectives are and weigh the pros and cons of several methods of achieving that objective. However, legal jurisprudence is reactionary. Attorneys and judges frame questions of law in terms of “what does the law say”, rather than evaluating the merits of the policy objectives that the parties in court are trying to achieve. The way the language frames the underlying legal question assumes that there is one correct interpretation of the law, and judges are simply determining that correct interpretation. This approach sometimes doesn't work well since questions of law are often litigated exactly because the relevant sources of law are ambiguous or contradict each other, and multiple interpretations are plausible.

Looking for Precision That Doesn't Exist Leads To Semantics Over Substance

During litigation, attorneys will often write dozens or hundreds of pages to determine the exact meaning of amorphous terms like “substantially evidence”, “arbitary and capricious”, “duty of care” or “reasonably foreseeable harm” or “proximate cause.” These terms are by nature broad and can apply to a myriad of different factual situations.

The Textualist Approach: When using a textualist approach to decide how the words apply in a specific fact scenario, judges must search the words carefully for answers. This approach sometimes results in a search for a level of legal precision that doesn't exist. This type of jurisprudence makes substantive decisions by splitting hairs over dueling dictionaries or novel grammatical constructions, rather than making the policy decision on policy grounds and empirical evidence that are more relevant to the underlying situation before them.

The Sometimes Elusive Search For Legislative Intent: Searching for a legislative intent can be just as problematic as the textualist approach described above. Legislative intent is often elusive, as the entire legislative body may have had no collective intent. Different legislators will have had different reasons for voting for a piece of legislation as most legislative works are a compromise. Many will not even have read the entire bill; most will not have thought through the implications of each provision. Moreover, judges must still ask what how the legislature intended to resolve the particular factual situation before them now; since the members of a legislature may not have even envisioned that particular scenario, it may be that no intent exists.

Legislative Facts: Judges will sometimes need broad-based empirical evidence to know how often a situation arises, or how severe it typically is, before crafting a rule of law. Judges may need to know which definitions of words are most plausible; background information on the subject matter may yield insight into which definitions best fits into the overall scheme of the statute. Yet most lawyers and judges lack the intuitive quantitative skills to interpret such factual information. Complicated scientific or technical information gets too little or too much weight and lawyers often have difficulty understanding the limitations of it. To add to the problem, some judges and legal scholars believe that judges should not rely on empirical evidence when deciding legal questions, therefore, a judge who bases a decision on empirical data may not be inclined to be honest about how that data may affect decisions. The decision may instead be based on linguistic arguments.

Emphasis on Precedent and Prior Cases

Judges look to prior cases to resolve legal disputes. Where the case is from a higher court, the judge must follow the case in resolving a case with similar facts. Where the case is from another jurisdiction, for example, another state or circuit, attorneys or judges may cite the case as persuasive authority if they believe the reasoning is sound. While consulting prior cases is helpful, this approach is problematic when applied in a rigid and mechanical manner.

A courtroom of the US Court of Appeals for the 10th Circuit.

Muddled Caselaw Results From Honoring Bad Precedent:

A popular saying says that,“Bad facts make bad law.” Relying on precedent is problematic when that precedent is incorrect or results in absurd consequences. Judges are reluctant or sometimes unable to overrule some of these problem cases. They instead distinguish future cases that reach the opposite result based on other details. Muddled caselaw then results from these attempts to reconcile inconsistent opinions instead of narrowing or overruling the problem cases.

For example, the Supreme Court decided in the Slaughterhouse cases in 1873 that the Bill Of Rights in the US Constitution did not apply to actions by states. The Justices stated that the “Privileges and Immunities” Clause of the newly-enacted 14^th Amendment effectively had no meaning. Future courts did in fact believe that certain civil liberties in the Bill of Rights actually did apply to state government actions by virtue of the 14^th Amendment. Instead of simply overruling the prior case, Justices instead chose to base later fundamental rights on a new notion of “Substantive Due Process” The Court effectively took the “Due Process” clause, designed to deal with court procedures, and used it to justify substantive legal rights that should have been based on the now-devoid “Privileges and Immunities” Clause. This change took decades, and resulted in numerous conflicting and confusing cases. Perhaps one day the Court will take the opportunity to fix the confusion, thereby letting judges write decisions whose legal justification is clearer and closer to the intent of those who passed the 14^th Amendment.

Prior Cases Often Decided Under Different Circumstances: Courts often wrote prior cases at different times or under different circumstances, so even if they are semantically analogous, the underlying reasoning may not be applicable. Some legal treatises often assume that some old cases are no longer good law for this reason, even if those cases have never been specifically overruled. The litigants and judges may have made different policy choices and had different social or business values based on those times and circumstances. Even within the same jurisdiction, there will be multiple judges who may conceptualize the law differently. Some judges take account of background “legislative facts” that demonstrate how a particular decision will or will not implement the legislative intent of the law. Different legislative facts may exist now as a result of changed circumstances, a better understanding of the issue among experts, or more research by better-prepared counsel. In such cases, the reasoning behind the holding in a prior case may no longer be valid.

Prior Litigants May Have Had Different Goals: Another problem with relying on prior cases is that they may have featured litigants with different goals than later parties. These goals reflect which arguments the parties choose to raise, and how they will divide their resources among each possible argument. Litigants usually have a finite amount of time and money to spend on their cases, and courts often place length restrictions briefs submitted and time restrictions on oral arguments. So it is possible that a decision will be based on a point that did not receive the full attention of the litigants arguing before the court.

There may be numerous sides to an issue; yet only the viewpoints raised by the litigants will receive significant attention from the court. The skill level and amount of experience in relevant areas of law also varies among attorneys. Some litigants have more at stake than others, and therefore are willing to pay for legal preparation. Sometimes litigants file or defend lawsuits mainly to delay. The decisions in these cases may have turned out differently if the losing party had a stronger interest in victory; the precedent set by them should be suspect.

Case Later Cited For Broader Legal Proposition Beyond What Judge Intended: Another problem occurs when a case is later misunderstood or misused to stand for a proposition beyond the original situation. For example, one of the most cited cases is Chevron v. Natural Resources Defense Counsel. The case states that when a government agency issues a regulation, courts will defer to those agencies if the statute they implement is ambiguous or allows flexibility. The justice who wrote the case later said he believed he was just restating the current law at the time which gave very limited deference to government agencies. Starting about 5 years later, courts and litigants began citing the Chevron case as a seminal case in administrative law that gives broad new discretion to government agencies. The basic holding may be good public policy, but this one decision is not really where it originated.

Published Cases Are Often Not Representative Or Are Outliers

Few business or personal interactions later give rise to litigation. Fewer of those cases are litigated to a final judgment instead of settling. Only a portion of those judgments are appealed, and even then, only a portion of the appeals result in significant published opinions that become legal precedent. So legal systems relying on caselaw are basing the state of the law on only a small portion of possible situations that are subject to the relevant law. When those published opinions are not representative of the vast majority of situations, then the law may become skewed by these outliers. Published cases are likely to be outliers for several reasons:

High Stakes: In cases that result in prolonged litigation, followed by appeals, the monetary or personal stakes had to high enough to justify the legal costs of litigating and appealing instead of settling. It may have been bet-the-company litigation, or an issue between people with strong personal animosity toward each other. A court therefore may craft a rule that is designed to prevent a rare yet disastrous scenario, but places undesirable burdens on parties in more common yet lower-risk situations.

Rarely Enforced Law Makes Bad Precedent: Where law is rarely enforced, the official state of the law may not reflect how parties actually behave. Caselaw in some areas, especially business-related law, is often designed to emulate how judges believe typical parties to a transaction already behave and what their expectations are. When faced with a novel legal question, judges may look to related law, or look to neighboring jurisdictions. If that other law does not accurately reflect how typical business relationships are conducted, the judge may write an opinion based on an erroneous assumption. Similarly, legal academics and public policy advocates may make erroneous assumptions about human behavior that may result in false conclusions. The danger is especially high when data is hard to gather, such as when gathering historical trends.

Changing Circumstances Create New Legal Issues: Cases that result in public decisions often result from changed circumstances or new technologies may have presented the court with an issue of first impression. During such an era of rapid social, economic, or technological change, it is likely the underlying factual assumptions made by judges, even in recent cases, will no longer apply to current situations. The state of caselaw may not accurately reflect business practices. Laws may not routinely be enforced, as it is possible that none of the parties involved are even aware of new changes in the law.

For example, courts began allowing software patents in the early 1980's, yet many experts in the field continued believing that software algorithms were generally not patentable, and technological constraints made enforcement somewhat difficult. Most companies didn't seek such patents; nor did they think to look if their own activities infringed the patents of others. Patents didn't play a significant role in most software development. Yet a current legal or economics scholar might not know this, and might make generalizations based off a handful of published opinions from the time period about when software could be patented. Those generalizations might well be inaccurate.

Final Thoughts On Legal Analysis:

Where the state of the law is unclear, courts often must make some policy decisions. However, attorneys and judges frame questions of law in terms of “what does the law say”, rather than evaluating the merits of the policy objectives that the parties in court are trying to achieve. Prior cases that have dealt with similar legal issues are helpful in making decisions, however, rigidly relying on precedent is also problematic. Those earlier cases often were decided under different circumstances. Published opinions are often based on atypical circumstances that led the parties to fully litigate the matter such as high-stakes, or a recent social or economic change. Those reading judicial opinions should remember that when the state of the law is unclear, a certain degree of policy making is inherent in deciding the state of the law.

Problems With Fact Finding In The Adversarial Process

In trial courts, juries and sometimes judges resolve disputed facts.

Idealized View: The idealized view of the adversarial legal system taught in law school ethics classes depends on parties having roughly equal access to the underlying information. It depends on both sides having similar resources – time and money – to hire attorneys of similar skill and experience. In litigation, there often are differences in the information and resources available to each side. Many aspects of this adversarial system result in it not being the most logical, accurate, or efficient system for determining disputed facts.

Information Gaps: One party typically has better access to facts than other party by virtue of their relationship to the situation that caused the dispute. For example, in a products liability case, the manufacturer will likely know more than the plaintiff about the design or production processes that may have caused defects. The plaintiff will likely know more about the circumstances that gave rise to the injury. Criminal defendants will usually know more about their crimes than victims or police.

Discovery and the Games Attorneys Play:

The litigation system allows each side to learn relevant information from the opposing side through the discovery process, where a lawyer can force the opposing side to produce relevant documents and allow witnesses to be interviewed. To be successful in discovery, an attorney often must know what exact questions to ask.

Each party has goal of using any legal means to prevent other party from finding damaging information. Normally this means an attorney will find out what he can about a case from his own clients and friendly witnesses, then use this information to outmaneuver the other side through numerous tactical decisions. The attorney does not have to reveal this information to the opposing side due to attorney-client and work product privilege. Therefore, the side with more information, by sharing it with his attorney, gets to make full use of it for tactical purposes; yet the opposing side does not get this same benefit. The opposing side can only gain some of that information through the cumbersome discovery process.

The discovery process is very document intensive.

One way to outmaneuver the opposition is to “prepare” clients and friendly witnesses prior to being interviewed by the other side during discovery. Prior to these interviews, a client's attorney can explain to him what the legal issues are, and what facts the other side will try to find to prove their case. The client or friendly witness can then answer the other side's questions in ways that are technically correct, but volunteer as little information as possible. Only if that other side can figure out what specific questions to ask will they uncover the necessary information. If they don't know in advance what to ask, they may not be able to uncover all relevant information.

Attorneys craft discovery requests as broadly as possible, in part to force opposing counsel to spend more time producing all documents. Meanwhile, in responding to requests to produce documents, counsel will commonly bury harmful documents among numerous files of less significant documents. Each side will generally produce documents at the latest possible time allowed by the court in order to minimize the opportunity for opposing counsel to examine the documents. Thus when there is an information gap between what each side knows, attorneys can turn the discovery process into a prolonged shell game. Where the information gap is small, such as when the same facts are available to both parties, the value of attorney-client and work product privilege are reduced. There is less room for strategic maneuvers, and the case is more likely to settle or be decided on legal questions.

Access to Counsel Versus Restrictions From Conflicts:

Ideally, many lawyers see themselves as problem solvers. Their ability to solve problems will usually be enhanced if they have experience solving similar types of problems in past work. They may have a better sense on how strong their client's legal position is. They will have a better idea of what types of solutions will best accommodate the goals of both their client and opposing parties. That will allow disputes to be resolved with less expense and disruption to all parties involved. These advantages will be most significant where the underlying subject matter is complicated, and where few attorneys are likely to possess relevant experience.

Yet these area situations where rules on conflicts of interest or confidentiality may prevent the attorney from taking the case in the first place. For example, counsel with the relevant degrees and experience with technical subject matter, such as in a patent or products liability case, are most likely to have worked for other parties whose technologies are similar, and possibly even compete in some way.

Land use attorneys can face similar constraints from conflicts of interest. There are likely to be a limited number of pieces of land being developed at a particular time. They are likely to share the same road capacity, the same school capacity, and may compete in the marketplace. Yet there are also likely to be a limited number of land use attorneys who are familiar with the intricate details of a city or county's land use code, and who understand the nuances of what motivates planners and elected official to approve novel projects. In order to limit the danger that a conflict will arise, attorneys willing to invest the time to become proficient in this area are likely to limit their business only to larger customers who have repeat business. These factors may limit the availability of experienced attorneys to new or small-scale clients who don't have repeat business to offer.

Conflicts can also pose severe limits in small communities. There are likely to be a very limited number of attorneys who are familiar with the social or cultural attitudes of a place, are familiar with the local judges, and have the substantive legal knowledge to efficiently handle a particular type of claim. In small communities, seemingly unrelated matters could pose conflicts. For example, an attorney incorporating a business may be disqualified from representing a business partner's wife in a subsequent divorce because the attorney had access to that partner's financial records. The party that must either use out-of-town counsel unfamiliar with the local judiciary or must hire counsel without experience in the relevant type of matter may be at a serious disadvantage.

Policy Solution To Conflicts Problems: One solution is to narrow the definition of what is considered a conflict of interest for former clients and what constitutes confidential information for former clients. Most states prohibit representation in the “same or similar matter”, language that is vague and leaves some discretion to judges and bar officials. MRPC 1.9. Most states exempt information from confidentiality requirements for former clients once it is “generally known.” More recently, some judges have broadened the definition of “generally known” to include most things in public records or that a reasonable lawyer or subject matter expert could find out. These trends are positive developments if the legal system is to ensure that both sides can have access to specialized, experienced counsel of their choice.

Another possibility for business and technical information would be to exempt “residual” information retained in memory after some period of time elapses. This approach is already used for some technical workers. It would ensure a time limit on how long an attorney's human capital could be tied up by a matter for a former client.

Expert Witnesses

The witness stand in a trial courtroom.

Each party can consult an unlimited number of expert witnesses in order to find ones who will testify favorably. The number of experts consulted is limited only by the number of experts who are available and willing to consult, and the time and money the client can afford to spend on the case. A side with more resources generally has an advantage since it can interview more experts, and thus is more likely to find one who will testify favorably. Attorneys usually have to disclose an expert to the other side and make that expert available for questioning only if the expert will be called to testify.

Meanwhile ethics rules prevent other experts who were consulted but will not used at trial from now testifying for the other side. For this reason, some experts will refuse to even consult with an attorney, unless they believe that the attorney is in a position to provide future business. Where many cases are somewhat intertwined, experts will often pick only one side to do business with, such as the plaintiff side or the defense side in products liability cases.

Thus as one side consults more experts in a specialized field, it may become more difficult for the other side to retain the most desirable experts: those in the needed technical specialty, are located nearby, and are familiar with the litigation process. This other side then must then expend more money to find less desirable experts: those outside the specialty, who are located inconveniently, or lack experience as an expert witness in the litigation system.

Final Thoughts On Fact Finding

Most of the litigation tactics above obscure the ability of the system to accurately resolve disputed facts. They give the greatest benefit to the side with the most to hide. In a civil suit, this side may be a plaintiff who wishes to hide his own conduct that led to an catastrophic event, or a defendant that wishes to hide his own negligence. The tactics allow a side with sufficient resources to delay or obstruct, thus raising the cost of litigation. These realities often force the other side to settle for something far less favorable to what the law may entitle them to. This system often does not seem like a logical, efficient, or accurate method of resolving factual disputes.

Some of these tactical games that drag out litigation could be reduced by scaling back the scope of privileges. With fewer evidentiary privileges, there would be less of an information gap between the opposing attorneys. Thus it would be less likely that an attorney could gain an informational advantage and then use it to outmaneuver the other side. Perhaps that would result in a faster, fairer, and more efficient litigation system.

Using Legal Skills To Analyze And Solve Problems Outside of Law

Since law school is supposed to improve their analytical reasoning and rational decision making skills, some people hope a legal education and law practice will give them useful skills for non-law endeavors. There is some justification for that view; law school does encourage students to spot issues and to apply concepts from one area of law in another. Yet the approach to problems taught in law can also hinder the individuals from seeking and accomplishing their non-law objectives.

Government officials from two nations meet to negotiate strategies and find common ground.

Adversity: a lot of successful people accomplish their goals by finding the path of least resistance and adversity. Our litigation situation is premised upon sharpening adversity. Many successful people or social entrepreneurs spend time focusing on how to make their ideas succeed. They are aware of what could go wrong or how someone could object, but they do not become preoccupied by these concerns. Prudent risk avoidance is a better approach.

Dysfunctional System: The adversarial system in its full form as practiced in law is not used outside of law, although sometime a lawyer will tend to gravitate towards that line of thinking. An adversarial system is not used in most business and scientific fact-finding projects. Work in these fields is scrutinized, but there objective of the evaluator is not to make the person fail. Adversarial systems also are not used for internal fact finding - a manager wanting employees to evaluate a proposal would not create two camps of opposing employees, then have each camp research facts, hiding ones that don't support their assigned position, then quibble over procedural details on how the assignment should be done, then each present opposing views to their boss. Some employees may engage in these tactics anyway if they have a lot of pride or reputation invested in a particular position, but most managers would not find those behaviors to be desirable for making good decisions. Many managers instead would rather have the fact-finders be open-minded enough to recognize a coworker's approach to a problem if it works better than theirs.

Lack of Fluid Reasoning: In some scientific and engineering applications, certain underlying mathematic and scientific laws can be learned to the point where they become engrained in the subconscious mind of the professional, to be applied when designing new experiments or inventions. In law, mechanically applying literal rules can also in absurd policy consequences, including policies going against the purpose of the rules. Often in some areas of law, like antitrust law, most laws become “rules of reason”, subject to long balancing tests. This thinking style does not allow one to fluidly learn rules to the point where they can be subconsciously applied, as they could potentially be argued in many cases.

Convention, Precedent, and Prestige: These characteristics of the legal profession hinder its ability to adapt to changed circumstances and opportunities. Some lawyers may therefore be hurt as economy and foreign competition change the economic landscape. For example, laid-off lawyers can face restrictions on where they can work due to conflicts with prior clients. They face limitations on how they can advertise their services. It is risky to be constrained by rigid rules and conventions in a changing world. It is also risky to think in terms of these constraints. Legal training may make people think in terms of what authorities tell them to do, rather than using any innovative approach they can think up. One newspaper columnist recently commented on need for an innovative mindset in order to remain competitive, even in law.

Subconscious, Intuitive Reasoning Not Favored: In many professions, subconscious, instantaneous discoveries and decision making occurs even if not recognized. Any person working in a job with other people must be able to read facial expressions and other emotional clues in customers or coworkers. Even scientists and engineers often use an intuitive understanding of the subject matter to motivate the discoveries that they later document. Books like Malcolm Gladwell's “Blink” discuss the process of subconscious thinking in great detail, along with its benefits and shortcomings.

Yet in law that type of reasoning is not really favored because it is difficult to document and persuade people with. Commentators like Judge Richard Posner have criticized the book above and its advocacy for subconscious thinking as promoting laziness. Some casebooks and class discussion are based on the premise that everything governed by law can be reasoned out until the correct or best answer is found with little emphasis on either empirical evidence or intuition.

Final Thoughts on Using Legal Skills To Analyze and Solve Problems Outside of Law

Many people hope the analytical reasoning and attention to detail taught in law school and law practice will be helpful elsewhere. There is some truth to this view; yet law also comes with its baggage. The adversarial mentality of law, the importance placed on precedent and prestige, and the lack of importance placed on intuitive reasoning can impede former lawyers when they seek other endeavors.