Pre-paid legal programs exist, but it’s kind of hard to write an insurance policy for possible future disputes that
a) don’t happen that frequently
b) by their nature involve abstract subject matter that is limitless in potential downside risk
Anyways, I think people here have a bad sense of the cost for legal services. A will, which everyone needs, won’t cost more than $1500 bucks for a moderately complex estate which would cover 99.9% of contingencies. Other than that, it’s pay-as-you go, unless you want to pre-pay for a divorce? Most people are pretty good at deluding themselves that they won’t find future strife and dispute in their lives…
Or the opposite. Contracts can be so incredibly detailed and tedious precisely to make sure that all foreseeable problems or issues are addressed and to avoid having grounds to go to court in the first place. Historically, any ambiguities in certain types of contracts have been construed against the interests of the party who drafted the contract and created the ambiguity. Therefore, it is in the interests of the entity preparing the contract to avoid any ambiguities where ever possible, within a certain level of reason.
What is the type of law that an “everyday end-user citizen” would ideally be able to do for themselves without the assistance of a lawyer? Immigration law? Administrative law? Patent law? Medical malpractice law? Product liability law? Criminal law? International law? Constitutional law? Tax law? What types of actions would constitute “using the law on an everyday end-user citizen level”?
As we all may recall, The Paper Chase was a book and movie about one student’s experience in his first year of law school. Early in the film, on about the first day of school, the Contracts professor, Kingsfield, says to the students, “You teach yourselves the law, but I will train your minds.” This, IMHO, sums up the law school experience: it teaches you to think like a lawyer.
So what does “thinking like a lawyer” entail? I’d say that first, it involves, for lack of a better term, a theoretical/practical approach to a problem. The theory comes from reading a number of cases that illustrate a certain principle. From these, a pattern is observed: perhaps a certain rule appears, or an element of fact evolves as key to the principle. Then, the practical aspect comes into play: students apply what they have learned from these cases to a hypothetical situation, in an attempt to resolve it. Grades come from how well the student applies what came out of the caselaw to the hypothetical. It is important to note that because of the way the hypothetical is constructed, that there is rarely one “right” answer to a problem; there may be two, or three, or more. Grades are awarded based on the logic the student uses to arrive at an answer out of all the possibilities–the legal reasoning, in other words. In this regard, it is similar to approaching a mathematics problem: it is not enough to give the answer; you have to show your work.
This is a very simplistic explanation of how a student spends his or her years at law school, but it should serve as a good general overview. It does not, however, fully explain “thinking like a lawyer,” so let’s explore that.
One of the experiences all law students have, is the moot–a mock appellate court. Why an appeals court, why not start students at the trial level? Because the moot is more concerned with legal reasoning, rather than evidence, which is the focus of a trial; and it is legal reasoning (“thinking like a lawyer”) that law school is trying to develop. Or, to put it another way, appeals are based on errors in law, so the ability to reason legally is absolutely necessary at an appeal.
So how does a moot work? Take (say) four students, all of whom have the same amount of legal education. Give them a problem (for example, “Does the XYZ Act violate the rights granted in sections 7 and 15 of the Charter?”). Tell students A and B that they will argue Yes to the problem; and tell students C and D that they will argue No. Let them have time to research the law and prepare their arguments, to draft and file facta or briefs, and let them argue in front of an appeals panel; complete with questions flying from the bench, just like in a real appeals court.
And here is the key to “thinking like a lawyer.” I noted above that there may be more than one answer to a problem (the Yes and No to the above question, for example), and I’d say that seeing these and being able to legally reason one’s way towards a given solution is key to thinking like a lawyer. This is what you’ll be required to do as a lawyer, after all–it may not be a moot, but you’ll still get a client, who has a problem, and wants a certain outcome to resolve the problem. Your job is to work your way towards that solution. Again, I’m being necessarily general here; there are certain ethical and other considerations that may require you to advise against that solution. But the point is that “thinking like a lawyer” means that a lawyer has learned to logically reason his or her way towards a given solution.
At its most fundamental, it would seem to be appropriate to say that thanks to law school, the lawyer has learned to see all sides to a problem, and has also learned to use legal reasoning to work his or her way to all possible outcomes. The layperson, who has not gone through this mind-training, may only be able to see one, or possibly two, outcomes; but likely has little idea how to legally reason his or her way towards any of them. But the lawyer can anticipate the arguments advanced by the other side, can advise the client of what the other side might argue, and devise strategies to meet those arguments. It’s not so much “understanding law,” I find; but rather, a way of thinking that involves law.
Stoid Law School and my legal training have done two things
i) gave me the fundamental understanding of law, I know what constitutes a contract for instance
ii) And developed legal skills. What this does is that it enables me to put my knowledge to practicle use. I may be given a brief relating to a provision of law that I have never heard off, but as a qualified practioner I can (and must) be able to do the requisute research, draft pleadings based on that, give advice and undertake oral advocacy on that topic with often a short period of time. I can also see how various areas of law interact. To take a US example Miranda raised constitutional issues and most laypersons can see that, yet it also brings in issues of administrative law, police powers, criminal procedure and evidence amongst other things.
By doing this I can attempt to get the best resullt for them, it might not be achiveable vide applying the strict letter of the law. Best example, in an a Trademark dispute, even if the case is 50-50 by getting a restrainingn order early on I may well be able to force a negotiation, which results in a favourable settlement.
If I were to ever attend law school (My second lawyer is bugging me and bugging me, he thinks he can get me into USC, his alma mater… but man, I’m old. It’s not off the table, though…) and end up an actual lawyer, I would have a hard way of it, because the one thing lawyers do that I would really have a hard time with and therefore avoid: fight for things you don’t believe in. Fight for clients you think are guilty. I’d have to limit myself to cases I really had the heart for, it’s the only thing I’d be good at. Coming up with whatever bullshit you can scrounge together to make your case just drives me bats.
I have a mini law library now (Not that mini, not including the reporters its a couple hundred books… most of which are out of date, but good foundation stuff) and I was reading a great book that is a collection of essays from different sources all about appeals and brief writing - I came across a comment in the middle of a piece about the importance of clarity in writing that talked about the opposite. The writer was saying that sometimes, when you have a dog of a case, your only hope is to fill up the pages with jargon and noise and meaningless goo in hopes the lack of substance will be obscured.
You’re not thinking of the Rule Against Perpetuities, are you? That’s more a property law concept than a contract one, and is rather difficult to understand at first go. If you’d like to try, here is the Wikipedia explanation.
I will say that what I think Camus was getting at (at least, from my reading of his/her remarks) is the contra proferendum rule: if an ambiguity arises out of a contract, it works against the one who drew up the contract. Wikipedia gives a good explanation of it here.
Nonsense. I went to law school at a later age; and even then, I wasn’t the oldest in my year. The oldest was 55 when he started.
To a degree, you can do that in civil law. At least in my experience. I try to avoid the matters where the person phoning me, looking for a lawyer, has no chance of succeeding in establishing innocence (note that I don’t like using the words “guilty” or “innocent” in civil law). However, even if the caller is liable for the matter, I might still be able to help–by negotiating the amount owed to the other side, or by negotiating a payment plan, or similar. For example, I recently prevented a creditor from seizing my debtor client’s assets (yep, they had the writ and the trucks and the movers ready to roll tomorrow) by negotiating a payment plan. End result: my client is bound to a payment plan that, if he keeps to the payments, will free him of the debt in a year. I actually have it in my calendar to call him within a week of the monthly due date and remind him to pay the creditor. Northern Piper alluded to this earlier, but here is a definite example–court is the thing everyone thinks of lawyers doing, but lawyers often negotiate outside of court. And here, we negotiated a solution acceptable to all. My client is happy his assets are not being seized, and the other side is happy that the debt is being repaid. In short, my client is as guilty as sin (i.e. liable for the debt), but I was able to help him and the other side come to an agreement that will see the debt repaid.
I’ve heard differently: when the facts are not on your side, you argue the law; and when the law is not on your side, you argue the facts. Either way, I’m not a fan of obscure Latin, of ten-dollar words, or of trying to “out-jargon” the other guy. I like plain language, and on more than a few occasions, my firm has taken me to task because I’m speaking or writing plainly. But I continue doing what I’m doing: I want there to be no mistake in what I’m saying. I know a few lawyers who delight in being obfuscatory (there’s one for you), and they don’t like it when I call them and ask them what they mean. Similarly, my clients like it when they can understand what I’m telling them. I try to remember that we are all governed by the law; and thus, we should all understand what it is telling us.
You are my hero of the week for this alone. It echoes my conviction that the law is ours, it’s about us, so we should be able to not only understand, but, if we apply ourselves, advocate for ourselves, at least in part.
And this is why I think there is some truth to the idea that lawyers try to keep things complicated and obscure, even unconsciously. The “parts”, if you will, of the law, are things that all of us deal with to one extent or another in our lives every single day: language, reason, logic, fairness, negotiation, etc. Unlike medicine, it is not, at its heart, highly specialized and complex and foreign. It’s a formalization of human relationships, really, and the conflicts that arise from those relationships, which is what our lives and our societies consist of every day.
It sounds like the saying regarding some defense attorneys: when they’ve got the facts on their side, they argue the facts. When they’ve got the law on their side, they argue the law. But when they don’t have either on their side, they just argue. It’s bitterly funny that the Chewbacca defense isn’t completely unknown in the real world.
There are do-it-yourself books with sample or shell documents for nearly all of these things (albeit, not so much with criminal defense or litigation matters). Why should things be simplified or dumbed-down when the tools and resources for doing them yourself are already out there? Particularly if you make a mistake, you’re the one who’s going to be held accountable.