Hang the Law: In Art Galleries

Balance

(DGIwire) — The law is a beautiful thing. Ask any law professor and you will hear that the law is a beautiful thing. Law students who are paying attention will agree the law is a beautiful thing. So what’s the problem? Janet Sobel, attorney and author of Litigation – Insult to Injury: What Judges and Lawyers Know About the Law That You Don’t, makes the case that the law, even if all concede it is a beautiful thing, doesn’t work very well when it comes to meeting the needs of ordinary people who go to court expecting justice. Its beauty, she says, belongs on art gallery walls – because it is not to be found in this country’s courtrooms. Sobel’s outspoken commentary can be found on her website www.judgingthelaw.com   Although outspoken, Sobel’s reasoning is sound and most lawyers agree with her.

What is beautiful about the law? Law school textbooks and law review journal articles analyze what the best justices have written over the last 200 years, both in our state and federal courts. At both the appellate and the Supreme Court levels, the development of American law follows the principle of stare decisis in defining the rights and obligations of all people who live and do business in this country. Stare decisis is a Latin term meaning “to stand on decisions” and describes the basic function of appellate law, namely to direct trial courts (the place where particular rights are heard and decided) to carry out the law similarly and evenhandedly to all people who come to all courts in the same judicial system. Thus, the idea is that the appellate courts set the legal rules for the trial courts to follow, and those rules are presumably uniformly applied to all parties, regardless of which courtroom or judge they happen to draw.

Sobel explains in her book that the law is too good for its own good. She says, “as beautiful as the law is, it is too complicated, too confusing, and too equivocal to deliver uniform justice in our civil courtrooms.” Further, she notes, “our adversarial system invites, even requires, each party’s advocate to persuade the trial judge to interpret the appellate law in favor of their client’s position, which means our trial judges can pretty much decide a hundred different ways in the cases on their dockets.” Judges know this. So do seasoned lawyers, much to their own frustration and disdain. There is rarely a clearly marked right or wrong way for a trial judge to decide a case. Sobel makes the point that the law, even when the published cases are beautifully and sensibly written by brilliant appellate and Supreme Court justices, there is no uniformity in their application at the hands of judges where cases are actually decided.

Sobel suggests we hang these beautifully reasoned and written legal opinions in art galleries where they can be ogled and admired for what they are: Beautifully reasoned and written opinions. They are nice in theory, not so good in practice. Her book fully explains that the lawyers and parties in the courtrooms where those opinions are supposedly being used to deliver “justice” cannot anticipate or predict how their cases will be decided, even though they must invest time, money, and energy without any clear calculation of the odds of victory. This leaves the law a very unsatisfying tool for resolving the disputes of average civil litigants. Sobel’s book shows why there is nothing beautiful about the uncertainty and disappointment that surrounds ordinary civil lawsuits in this country and why lawyers and their clients should try better approaches than court for solving disputes.

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