Law in Contemporary Society

Navigating the Path of the Law

According to Oliver Wendell Holmes, Jr., the task of the lawyer – the good lawyer, at least – is to predict. Accurate prediction is the key to her success, as clients pay her to achieve a desired outcome.

I think Holmes is saying in that passage that the client pays for the prediction.

Holmes instructs us that the law consists of the “prophecies of what the courts will do in fact.” Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 460-61 (1897). Thus, knowing how the courts will rule, a lawyer will advise her client what action to take or from which to refrain in any given situation.

Not taken in context. Holmes is asking "what is law" for the purpose of learning law. To say that counseling, "in any given situation" requires predicting what courts will do shortchanges most counseling. My organization, SFLC, is primarily engaged in counseling clients. I think we spend probably no time each week predicting what courts will do. Predicting what will cause the IRS to issue a positive determination of 501(c)(3) tax exempt status doesn't require predicting how the Tax Court would rule if we sued on a negative determination; predicting whether the California Secretary of State will file a corporate formation or reject it is not about how courts will rule. Helping a client decide how much resource it wants to put into trademark enforcement activity, or suggesting amendments to its trademark licensing policy does not require any prediction of any litigation outcome, and so on. Writing an opinion letter on whether a certain proposed form of software distribution would comply with or violate the terms of a particular free software license we helped to draft in the first place does not require prediction of what a court would rule in a copyright infringement action: it is closer to issuing a ruling than predicting one. Those happen to be the three legal matters that crossed my desk as the supervisor of my senior lawyers in the last thirty-six hours, and none of them conforms to the archetype advanced.

As I said in my comments on the first draft, getting away from the litigation-focused examples used by Holmes (who is writing about learning law rather than practicing law, and who means really "learning about common and statute law" in doing so) to consider a broader range of contexts in which lawyers advise clients will help to create new ideas. You've tried faintly to achieve that result below, but further effort in that direction would yield further improvement.

Combined with an intimate understanding of her client’s unique goals, this ability to predict leads the lawyer to an effective risk management strategy that will best yield her client’s desired results.

This makes it appear that lawyers are clients' risk managers. That may be true in some cases, but not in most. Organizations that perform risk management are unlikely to do so through their outside counsel. For them, opinions of counsel are tools for managing risk, and far from the only or the most important tools in the box. Individual clients or small businesses aren't likely to perform risk management activities explicitly, and they are more likely to discuss most risk and liability issues with their insurance agents than their lawyers.


Though seemingly litigation-focused, this advice applies to transactional and other lawyers as well. Knowing the formal consequences of a client’s past or potential choices will impact the advice a lawyer dispenses.

Knowledge impacts advice?

The specter of litigation, penalties, or other enforcement actions inform as to the risks of action or inaction. True, some lawyers also counsel their clients as to public perception and other informal consequences, but as Holmes sets forth, the “law” itself is the likelihood and result of the incidence of public force. With the possibility of public force looming, a lawyer’s first goal, then, is prediction. Knowing the consequences of a client’s decisions is the not a lawyer’s only task, but is her primary step in achieving success for her client.

What did this paragraph say?

Holmes instructs us, “…a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court; and so of a legal right.” Id., at 458. Applying this maxim more broadly, a lawyer must know both the formal consequences of not performing certain duties and the formal enforcement of her client’s rights. A client’s aim may be to avoid being sued in the first place, or to win in front of a court of law, or another result along a continuum of legal consequences. Before choosing a strategy to achieve such a goal, however, the lawyer must convey to the client his rights, duties, and their corollary effects.

This is another use of a statement out of context. Holmes is trying to show that all juridical relations can be described in terms of consequences in the actions of courts, rather than as arising independently, from some moral or extra-systemic locale. A "duty" refers to an action or forbearance that will be eventually ordered by a court if not otherwise discharged. A "right" is the benefit of someone else's duty; elsewhere in Holmes' system we see the importance of the conclusion that duties are anterior to rights.

This point may be important in its original context, but I'm not sure exactly what it is adding here. The inference to which it gives rise is that a lawyer's role is to predict the consequences of client actions, which is the same point you've expressed earlier in other ways. What was this proposition supposed to add.


Once the risks to her client are clear, the lawyer must engage in her role as a risk manager. In order to perform this job well, she must know her client’s goals and how risk-averse she is expected to be. Though risk management may involve analyzing a range of possible courses of conduct and the outcomes therefrom, a client’s unique perspective of his own goals may significantly narrow this range, sometimes even to a single strategy. Thus, while a lawyer must be able to perform risk management along multiple planes of possibility, her task will be broadened or narrowed by her client’s own risk preferences.

Leaving aside the point about the lawyer as risk manager, treated above, these 105 words seem to amount to "the lawyer must understand the client's instructions in light of the client's preferences." What else was being said here?

Robinson in Lawyerland shows a unique but instructive example of the importance of knowing your client. When Robinson discovers that a client of his may actually want to receive jail time, he does the “Popeye dance” to avoid detection and achieve his client’s goals. First, the lawyer must “get the idea” – she has to understand her client’s motivations and goals so she can respond appropriately. Then, however, she does not necessarily make all efforts to “win,” per se; she makes all efforts to achieve the outcome her client seeks.

What makes this example "instructive"? What are we actually learning from it in this context? Is the point about implicit instructions?

This anecdote reminded me of a real-world case about which a mentor told me before I began law school. He practices in the field of medical malpractice, and this story taught me that both defense and plaintiff’s attorneys in criminal and civil litigation alike must focus on their client’s unique goals before choosing strategy and tactics. This lawyer’s client was a widow suing a hospital and its doctors for malpractice resulting in the death of her husband. Typically, he told me, medical malpractice plaintiffs’ attorneys with a strong case seek out a jury trial while the defense side desires settlement. However, this client was unique. The events leading up to her husband’s hospitalization were so embarrassing to her that she would have done nearly anything to avoid trial. Though she almost certainly would have prevailed in front of a sympathetic jury, she utterly refused to expose the details of her husband’s death for any amount of money.

What was the outcome of this "real world" case? Why did this "real world" practitioner take it, and what fee arrangements did he make, I wonder, for the representation?

In a situation such as this, though her lawyer could easily predict how the court would react to the litigation, he then had to step back to respond to his client’s distinctive wishes. Like Robinson’s, a client’s goals may appear counter-intuitive or risk-intensive compared to traditional practice. However a lawyer is not doing her job if she merely predicts the outcomes; she must next determine her client’s individualized preferences.

Why do you speak of predicting the client's preferences? Surely the lawyer's task is to receive instructions and execute them, not to predict what they would be if he sought to receive them.


Finally, then, knowing how legal duties and rights will translate to public enforcement, and knowing the mix of preferences of any given client, the lawyer must engage in thorough risk management to achieve the desired predicted results. For, merely predicting the result of litigation or knowing that a client expects a certain sum of money is pointless without more. Also required are a lawyer’s judgment as to the best strategy and tactics to choose in pursuit of the optimal outcome. Given the constraints of the system and her client, as well as a given amount of uncertainty, a lawyer must engage in cost-benefit analysis when advising her client as to strategy. She then is able to choose the tactics most likely to bear fruit.

Are you using "strategy" and "tactic" as artful synonyms? Strategy means choice of objectives and allocation of resources; those are the decisions one expects clients to make. Tactics, the operational methods of achieving defined objectives given allocated resources, might more usually be within the compass of lawyers' decisions. But those are operational decisions, and in organizations that differentiate risk management, it is precisely not the business of the operational decision-maker. Risk managers stand apart from the operational achievement of objectives. They instead develop procedural and substantive measures for coping with the unintended or contingent consequences of operations.

Holmes’s idea of the law as prophecies of courts’ decisions is instructive as a lawyer balances the risks inherent to her clients’ particularized preferences. The law isn’t a list of written rules, but the real-world consequences of a client’s and his lawyer’s decisions. Knowing this, the job of a lawyer is to manage these risks. -- JanePetersen - 22 Apr 2012

I don't think this rewrite is particularly successful. Perhaps I meant to facilitate in my original comments a more comprehensive reconceptualization of the first draft. It seems to me that instead specific propositions or phrases were layered in to the previous text, leaving less coherence overall, and not quite so much conceptual progress as I thought you were in a position to make.

Holmes wrote an essay about how to learn the law. You are writing an essay about how those ideas might be understood in connection to what lawyers do when they practice, specifically when they advise or counsel clients. Translated to this context, Holmes' point is that simple basic charter of realism: things are what they do, not what they are called. Counseling is about helping clients to understand the consequences of possible actions and structures, which means helping them to predict social processes. For a client, the law is a prediction of what courts and other regulatory agencies will do, in the same sense that contracts are about predicting what contractors will do, and marriage is about predicting what one's spouse will do. Counseling therefore means giving the client improved means to project into the future the consequences and significance of present or contemplated decisions, habits, practices, designs. Holmes' point, which is most relevant to students, is that focusing on the predictive quality of legal substance simplifies learning the law by purging it of extraneous ways of formulating rules. The relevance of consequentialism to practitioners is different. By asking what a lawyer is really doing in advising a client, one can go beyond Holmes' point about the effect of realism on how one learns law to formulate a new view about what we do when we go from learning law in school to practicing it in the world. Surely that will help us to understand and overcome some portion of our fear of actually practicing law, of really "being a lawyer," which drives so many students into taking office-worker jobs as drones in larger organizations to which they pawn their licenses.


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r5 - 22 Jan 2013 - 20:10:29 - IanSullivan
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