What Good Is a Lawyer if the Answer to Every Question Is, “It Depends”?
A good lawyer will ask questions to separate the actions that contributed to the tragedy from those that simply did not have to pose the risk that they did
I started thinking about this as I prepared to lead a webinar entitled, “How to Cancel Today’s Show: Contracts, Challenges, and Consequences.” I had decided to give no canned checklists or one-size-fits-all contract language, but I was having trouble identifying why not. So I fell back on the usual lawyer’s reason for not giving legal advice for free, which is that this is how we feed our families. True, but there is more.
Let’s start with a line from the movie The Paper Chase, in which Professor Kingsfield thunders to his students on the first day of class, “You come here with a skull full of mush, and if you survive, you will leave thinking like a lawyer.” But how exactly does a lawyer think? Is it any different than anyone else?
The lawyer’s thought process
I’m not sure when I really learned to think like a lawyer, but I know I learned how to explain the lawyer’s thought process by talking with fire investigators. They first walk around the entire outside of a building, looking for signs of burn damage. Then they enter the building, making the widest possible sweep of the interior. They continue inward, making closer investigation of smaller and smaller areas, until their concentric circles lead inexorably to the evidence of first burning. This method of investigating a fire provided a language for the way I work with my own clients.
A lawyer analyzes a set of facts from the general to the specific, using his training and experience to help interpret the evidence he finds.
How is this different that what other people do? In my experience, most people simply want the answer. “If I do this, will I get sued?” A good lawyer cannot answer that directly. Instead, a lawyer’s value is not so much providing an answer (there are plenty of those) as asking questions to help you find the best answers for your set of facts.
Here is an example ripped from the headlines. The ten-year observation of 9/11 coincided with the first Sunday of the NFL season. In New York, a former president attended the Jets-Cowboys game. The timing, location and high-profile guests all suggested that security would be at its best. Yet a patron brought in a stun gun undetected. The headlines demanded to know, Was this a security failure?! Let’s apply legal thinking to circle around the facts and apply our knowledge before we answer.
The venue followed approved pat-down and bag check policy. The press screeched that this obviously wasn’t enough! But just a few years ago patrons sued several venues that started doing pat-downs, and the many complaints about long lines and intrusive searches suggest that even in 2011 there is strong opposition to more rigorous searches.
But a man got through with a weapon! That’s right. One man in a crowd of more than 70,000 people. One man out of more than a million people who attended NFL games that weekend. One in a million. To use the relevant tort law terminology, one security breach in a million appears reasonable under the circumstances. The law does not require venues to be perfect; it requires that they behave reasonably.
Once you think like a lawyer, you realize that the mere occurrence of a problem does not necessarily mean there was a failure. It depends … on whether the venue behaved reasonably to prevent reasonably foreseeable harm. This is a fact-specific analysis.
The benefit of hindsight
In addition to our fabulous training in mental gymnastics, lawyers often have an additional advantage over our clients – hindsight. Some of my litigation clients have complained over the years that it would have been easy for them to see what I did if only they had the benefit of hindsight. Perhaps that’s true. But juries have the benefit of hindsight also, so everyone looks at the reasonableness of conduct through the same lens.
For people who don’t like the way their actions look in retrospect, there is an obvious solution, with which a lawyer can also help — risk management. Among the many titles for lawyers over the years is Counselor. Particularly for clients working in a field that faces special issues, such as sports and entertainment venues, a lawyer who knows your business can actually help you behave reasonably. (This is what we did talk about during the webinar.) Venue managers should ask whether the problems you face require specialized knowledge of your building, events, patrons, weather, vendors, etc. If you think managing the risks of inviting thousands of strangers over for a good time every night is just common sense, good luck to you.
The answer is the easiest part
From the horrific crash that took driver Dan Wheldon’s life last weekend in Las Vegas, I could list several things I think might have reduced the risk. With a little research, so could you. So what? A good lawyer will ask questions to separate the actions which, although reasonable under the circumstances, nonetheless contributed to the tragedy, from those which simply did not have to pose the risk that they did. We can all agree that any loss of life in the name of entertainment is terrible. But was something done wrong? It depends.