Is Prediction the Only Trade of a Lawyer?

-- By NovikaIshar - 26 Feb 2010

Oliver Wendall Holmes posits that law is nothing more than "prophecies of what the courts will do in fact" and consequently it is the lawyer's role to 'predict' or make judgments regarding the incidence of public force through the courts (Holmes 1). This construction of the legal profession seems problematic for two reasons. One is the reason cited in "Modern Legal Magic," that predicting the beliefs of judges and juries is not a quantifiable or measurable science available to lawyers, but rather an imprecise art.

Which would not prevent it from being what lawyers do, so I'm not sure why it's an objection.

The second, and perhaps more difficult, reality is that judges' personal ideologies are a significant factor in the judicial decision-making process, but are often beyond the scope of a lawyer's ability to influence through legal argumentation since they are predetermined and entrenched.

Maybe they are and maybe they aren't. Or maybe the role they play in judging is not entirely fixed. Or maybe the lawyer's aim is to use the fixed biases and idiosyncrasies of the judge to make his client's case more likely to succeed. In fact, however, I rather doubt the premise that "judges' personal ideologies are a significant factor in the judicial decision-making process," until the nature of these supposed ideologies is defined.

This seems to have troubling implications for the role of lawyers as advocates in the courtroom.

In "Modern Legal Magic," the author

Surely it is not that hard to credit Jerome Frank? What happened here?

argues that it is virtually impossible to determine what standard of belief a court will employ when analyzing a set of facts because such a standard is purely subjective and varies with each individual (49). A court's decision does not just take into account the facts and questions of law in a particular case, but also reflects the judges' accumulated social experiences and beliefs (including non-legal perspectives) that shape how they will analyze those facts and arrive at a legal conclusion. According to this article, endeavoring to make predictions about the likelihood of a judge's behavior is not an exact science, but an artistic effort to achieve a social idea or aspiration which can be approached with a scientific spirit. This assertion is correct in the sense that arguing before a court involves creativity and the desire to achieve a particular social outcome. However, while it may be impossible to classify a judge's thought process in order to create a formulaic guideline that lawyers can follow when arguing before that judge, it is possible to look at precedence and get a sense of how that judge tends to vote on certain issues. Generally, judges are consistent in comporting with a personal ideology when interpreting the law, whether conservative, liberal or otherwise categorized.

How do you know this? I've been around for a while, and I don't know this. If you pick a large number of federal district court opinions at random, I think you will read a long time before you find a case you can state convincingly shows the personal political ideology of the judge. In the year I spent clerking in the District Court, I worked with the judge on roughly 400 cases, large and small, and I would be hard-pressed to think of a case that I could say was significantly affected by his personal political ideology. I think you have a misperception about what most judges do.

This leads to the second part of the problem, which is the notion that judges have personal belief systems that affect the way they will make decisions. One tenet of the school of legal realism mentioned in Felix Cohen's article is that judicial opinions are actually rationalizations of decisions made prior to the matter at hand. It is reasonable to conclude that the more strongly a judge feels about a particular issue, the more likely it is his or her private viewpoint (based on personal morals, experiences, etc.) will ultimately determine the outcome of the case, rather than the facts or legal arguments before them. Examples of this phenomenon include controversies involving contested topics such as abortion, gay marriage, or gun laws.

That's just what I mean: this isn't what judges do all day. In order to think usefully about what judges do, you can't begin from the cases that almost never happen. If you think about how judges deal with the dockets they actually have, you'll gain some respect for the fact that judges understand their own role. They know that they're supposed to make decisions in a constrained fashion. They understand what they do and how to do it more precisely than we do. Realism can still be right that the opinion, rather than capturing the judge's thought process, rationalizes it: that's not the same as saying that the judge's thought process was venal, political, or whatever.

Every decision a court makes has a social impact, and often a judge is guided more by the desire for achieving a certain practical result than by any legitimate legal reasoning presented by lawyers.

Is what makes legal reasoning legitimate that it is presented by lawyers? Are lawyers less or more concerned than the judge with the achievement of a certain practical result? If the lawyers are presenting the judge, explicitly, with rationalizations for the practical results they want, why is their legal reasoning "legitimate" and the judge's not? Is this statement an inconsistent oversimplification?

Lawyers have a few rhetorical tools to persuade or trick judges into reaching a particular decision that would benefit their client. Cohen mentions, among other things, the manipulation of facts (839). Lawyers can emphasize facts that will make their position seem more sympathetic and cater to a set of judges' ideologies. But judges also have legal resources to induce the outcomes they personally favor. For example, a judge can choose to apply a low-bar rational basis test as opposed to strict scrutiny to uphold a particular law, or in contrast, apply strict scrutiny to strike down a law he or she considers inappropriate.

Were you under the impression that lower courts are free to choose their standard of review under the equal protection clause? Or that it would be easy to get five votes on the Supreme Court to change the direction of the law? Surely you know that the sentence you wrote is not remotely like the law.

Justifications for supporting one mode of analysis over another sometimes seem flimsy or arbitrary, and judges are strongly divided on how they interpret the facts before them, as evidenced by the multitude of 5-4 split decisions handed down by the current United States Supreme Court.

What flimsy, arbitrary Supreme Court cases did you have in mind, and how do the "multitude" of 5-4 cases indicate disagreements about facts?

Since the facts and laws before a court are the same, the cause behind the differences in judicial opinions are the judges; individual beliefs.

That doesn't follow at all. It's hard to know where to start in explaining why that's wrong. Consider a statute whose text is ambiguous, or two enactments that could be harmonized in different ways importing opposed legal consequences. Consider an appeal raising the sufficiency of jury instructions on a statutory offense being prosecuted for the first time. Consider any run-of-the-mill contract dispute requiring the court to interpret the agreement, or a Markman ruling establishing the claim construction of a patent being sued on. Judges undoubtedly will differ as to the results they get, but how do you imagine judges' individual beliefs enter into their rulings?

The long opinions of judges explaining why they reached the decision they did may just cloak a preset personal belief that cannot be swayed by any appeal made by a lawyer.

Appeals aren't heard by the judges who rendered the decision, right?

An opinion backing a judicial decision can't be just a cloak: it has to present reasons for the conclusion that are subject to additional review.

What repercussions does this predicament have for lawyers? Are we just forecasters who play the waiting game and hope for circumstances (namely judges) to change, as Robinson shrewdly noted? Or is there something more lawyers can and should do in representing clients? The current dispute over gay marriage may heatedly make its way before the Supreme Court. Yet many proponents of marriage equality want to postpone such an event because they believe the political or ideological leanings of the judges on the bench will preclude a victory; meanwhile, the question of whether a segment of the population can exercise certain rights is put on hold. It is seemingly impossible to separate law from politics, and to separate an individual from his or her beliefs. Cohen notes this dilemma in pointing out that judges and social forces influence the law, not morality or logic. As a result, lawyers must be constantly aware of judges' predilections and respond to judge's temperaments. A good lawyer knows what to do in order to affect a judge. Yet in looking at voting records, it seems judges consistently decide a certain way depending on their subjective standards of belief. This is especially challenging in light of the fact that lawyers engage in the making of common law in courtrooms and thus have the unique ability to effect social change through the law, as visible in past civil rights cases. It seems that this responsibility entails more than just passive predicting, but involves a more affirmative advocacy. At the same time, there does not seem to be much lawyers can do in the face of staunch ideological obstacles. While a resolution on this issue may not be clear, I am not completely satisfied with envisioning lawyers as mere predictors.

This paragraph is no less confused than the remainder of the essay whose conclusion it attempts to be. The crucial place to apply editing effort is in the outline stage, where you can focus on making a clear progression of steps in a structured argument, in which each step can be tested independently, and the joints can be made certain.