Law in Contemporary Society
Andres O’Farrell revised paper by Rafael Boisset

1. Holmes defines lawyering as “the prediction of the incidence of the public force through the instrumentality of the courts”. Nonetheless Holmes’ definition could have several interpretations it seems to him, that the role of the lawyer is the anticipation of what the courts will do in fact, which he identifies as the law itself If that is the case, them Holmes would be limiting its opinion to those scenarios in which the law reaches the instrumentality of the courts. From this standpoint, the quality of trial lawyer’s work should be judged against the accuracy with which he or she can calculate the most likely behavior of a court of law under a given set of circumstances. On the other hand, it could also be understand from Holmes definition the role of and advisor lawyer, who being able to predict the possible outcomes of a court’s opinion, advises his or her client in a manner to avoid losing in an eventual conflict. From this standpoint, then, the quality of an advisor lawyer’s work should be judged against the opportunities in which their clients faces a conflict as a result of a wrongful prediction.

2. Predictability is, indeed, a highly desirable commodity in any legal system. In this sense, all agents in a given community need to know and understand which conducts are allowed, which conducts are prized, which conducts are forbidden and under which specific circumstances might their actions trigger a punitive response from the state.

In this context, lawyers does in fact assume an important part in observing, understanding and predicting the behavior of those in charge of interpreting and applying the law3. Human relations are intrinsically dynamic and they are changing at an ever increasing pace. Distances have shrunk, information is more readily available, communication is virtually instantaneous, markets have become global and a great share of the world’s assets is now intangible. Thus, increasingly complex transactions are now closed with a speed and coordination that, merely a few decades ago, would have baffled even the most sophisticated financial architect.

On the other hand, lawmaking is sometimes reactive. It follows change and, unable to provide detailed directives and guidelines in advance, attempts to regulate in hindsight. In this sense, passing a new law implies addressing an already existing problem, issue or practice. It is then when lawyers must act changing practices of human interaction and the sluggish promulgation of the parameters by which they are governed. By so, shifting the lawmaking from reactive to proactive, as Holmes suggested by predicting the court’s outcome.

4. The essential role of a lawyer exceeds that of a legal analyst. Indeed, the essence of lawyering is not only the anticipation of how courts will rule on a specific question of fact or law, but also the generation of new ideas where there were none, or the modification of the regulatory framework where the existing parameters so require. The essential calling of a lawyer is that of providing clients with innovative solutions and original alternatives where traditional legal instruments fall short of modern practices, or when the statutory setting is not receptive of the newest tendencies and business models.

In no other area of practice is this as evident as it is in litigation, where decisions made by the lawyer will be scrutinized by a court of law. In this context, an experienced litigant facing a contested issue should certainly be familiar with the legal precedents governing the case. Hence, the aspiration of the trial attorney should be to abide by the existing decisions in case it is favorable to its clients’ interests, but, in case it is not, to obtain an entirely novel ruling that fits the specifics of his or her case. In the end, the truly landmark cases, those that are remembered, studied, analyzed and dissected for generations, are those in which the legal counsel, with new and creative arguments, is able to convince the court to steer away from its previously established line of thought on the subject.

5. Of course, these new ideas, these original solutions, can eventually become the norm. Then, after the innovative exception becomes the actual rule, the sense of freshness and originality is somewhat diluted or lost, or at least it is not immediately connected to the activity of the lawyer. But it is that creative mentality that should inspire lawyers, a will not to be constrained by the rigidity of the system but to find the possibility of acting beyond it and promoting change when necessary. For all purposes, as Holmes proposed prediction is key, whether if such prediction should be followed or overruled.


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r2 - 08 Jan 2010 - 22:28:00 - IanSullivan
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