Blind Guides: The Difficult Task of Comprehending the Law
by D. David Lambert
One point emphasized during the first year of law school is that the law is difficult to comprehend. Although it was first published three quarters of a century ago, today’s reading lists for entering students almost invariably continue to include Karl Llewellyn’s book, The Bramble Bush, to help drive home that point. The poem facing the title page contains the essence of the book’s message. For many first-year students the only thing in the book that they are able to comprehend is the poem:
There was a man in our town
and he was wondrous wise:
He jumped into a bramble bush
and scratched out both his eyes –
and when he saw that he was blind,
with all his might and main
he jumped into another one
and scratched them in again.
This little gem offers hope – hope that if at first the law might seem incomprehensible (our eyes will be scratched out as we learn the law), comprehension will come once our eyes are scratched back in. With time, experience and effort we may gain insight and perspective that will enable us to steer clients through the challenging courses presented by the disputes they might bring to us for resolution.
A recent ruling from the Supreme Court of Utah offers persuasive evidence that even the best and brightest among us have yet to jump into a bramble bush and have their eyes scratched back in again. The case in question is Medved v. Glenn, 125 P.3d 913 (Utah 2005), which corrected a misinterpretation of an earlier case, Seale v. Gowans, 923 P.2d 1361 (Utah 1996). Both cases involved determining when a plaintiff has suffered an injury cognizable at law in the context of a failure to diagnose cancer. In Seale, the court determined that under the facts of the case, it was not until the plaintiff’s breast cancer returned that she suffered a cognizable injury upon which a cause of action for a delayed diagnosis could be based. Her claim was not barred, because the court held that the statute of limitations did not begin to run until she sustained damage.
In Medved, the plaintiff alleged that because of the doctor’s failure to diagnose breast cancer, she had to undergo more invasive and extreme cancer treatments. The plaintiff also sought damages for an increased risk of recurrence of cancer. Relying on an erroneous interpretation of Seale, the trial court dismissed all of the claims, reasoning that Seale stood for the proposition that until the cancer recurred, there was no cognizable injury in a failure-to-diagnose cancer case. The Court of Appeals affirmed the dismissal.
The Supreme Court of Utah then reversed and at the conclusion of its analysis wrote:
Although we are baffled by defendants’ interpretation of Seale, we recognize that it was adopted by our colleagues on both the district court and the Court of Appeals. Moreover, in view of the arguments presented in this case, it appears as if it has been widely accepted in our legal community. It is therefore entirely possible, if not likely, that prospective plaintiffs have delayed filing suit due to the widely-accepted, but erroneous, interpretation of our holding in Seale.
Courts do not usually state their incredulity so directly. It seems safe to assume that the Supreme Court justices chose the word “baffled” to emphasize that Utah’s highest court could find no logic or legal acumen underpinning interpretations of the issues by the the Court of Appeals’ or by the trial court. The Utah Supreme Court justices were perplexed as to how the other judges and lawyers could be so blind to the correct interpretation of the prior decision.
Don’t we all frequently feel baffled? Don’t we all wonder how other lawyers can be so obtuse about their interpretation of a contract, statute or case?
One might attribute the difference between an interpretation of a case and that of opposing counsel to one’s superior intellect and experience, or to opposing counsel’s lack of it. Such an approach does not explain how the lawyers, the trial court, and the Court of Appeals in Medved made such an erroneous interpretation of Seale. Do the justices of the Supreme Court of Utah collectively have a vision and understanding of the law that is on a different plane than the other legal thinkers who dealt with the issue, or does the explanation lie elsewhere? Is the law so inherently difficult to comprehend that any argument can be made in good faith, and any lawyer or judge can entirely miss the point?
If some of the best legal minds in our community, such as those on the Court of Appeals and the trial bench, can get something so wrong, it begs the question of how lawyers in their everyday practice are to make correct interpretations of cases, statutes or contracts so as to advise their clients to pursue a reasonable course of action. Is Medved an aberration or does this kind of confusion occur daily at every level of the practice of law? How do we “scratch our eyes back in” so we can see what the Supreme Court justices see?
In posing these questions, I realize I can answer none of them, and if my eyes are at best only partially “scratched back in,” what do I do to compensate? After reflecting on what I do and on what I ought to do to deal with this dilemma, I offer the following suggestions for how lawyers can deal with the inherent difficulty of understanding the law and making good recommendations to clients:
Practice the fundamentals. Just like blocking or tackling in football or passing and dribbling in basketball, it is the failure to practice the fundamentals of any endeavor that results in failure and loss. Don’t cut corners at the investigation stage of a case. As my mother used to say, do your homework.
Get a second opinion before filing a case. Remember, you’re not the only person on the planet who has good ideas, so ask for input from an attorney you respect. (If you don’t practice in a firm, contact the Utah Trial Lawyers Association, which has a standing offer by its membership to provide this kind of help to fellow lawyers.) Attorneys whom you respect often are also your friends, but friends may be too kind to point out flaws in your case. Consider calling someone who typically takes the opposite side of the type of case you are working on and who is more likely to be objective than either you or your friends.
Consider the early use of intermediaries who specialize in dispute resolution. An experienced mediator can help you understand when you have misjudged a case and can recommend creative solutions.
Be sure you have your client’s informed consent before you commit him to an expensive and lengthy court process. The most important decision to be made in a case usually is whether to pursue the matter at all. Helping your client make this decision will require skill and preparation that will in turn earn his confidence and trust and increase your ability to keep matters in perspective. If lawyers overemphasize the difficulties of a case, for example, they may fail in their role as counselor if clients choose not to pursue or defend their legal rights when they should. While it is both easy and tempting to tell clients what they want to hear, what they need to hear is their lawyer’s realistic assessments of the strengths of the case as well as its weaknesses. They must be made aware that filing a suit may be comparable to a declaration of war upon the other party and that waging the campaign could be long, bitter and costly. They need to understand that guaranteeing a successful outcome is impossible. Also, if a client might be exposed to such unintended consequences as counterclaims, those cards should be laid face-up on the table.
Treat others respectfully. This may sound like a title for a Sunday school lesson, but it is on my list of suggestions because once you’ve made up your mind about something, you probably assume that you are right and that the person who is disagreeing with you must be wrong. If we are not respectful of people who disagree with us, we cannot expect them to respect our arguments. Another thing I try to keep in mind is that sometimes I might actually be wrong.
Be willing to reconsider your position. Stubbornly pursuing a wrong strategy will only run up costs and make a reasonable resolution more difficult or impossible.
Develop and maintain positive relationships with opposing counsel – often some of the best and brightest people you’ll ever know. You don’t give up anything in your case by being courteous and willing to listen to the other attorney with an open mind.
After three years of law school and 27 years of practice, there are still times that the law seems incomprehensible but I maintain hope that Karl Llewellyn’s promise will be fulfilled – that my own eyes will be “scratched back in” and that I will be able to do a better job of helping judges and jurors, as well as other lawyers, see things as clearly as I do. In the meantime, if I seem to suffer from lack of vision or insight, I ask for your patience and your help in clearing the brambles from my eyes.