Friday, January 29, 2016

Do You Have a Case for That?

The following posting is made with permission from the State Bar of Wisconsin who originally printed it as an article with the same name included in the Wisconsin Lawyer, Vol. 88 No. 11 December 1, 2015:  

The willingness to question authorities makes lawyers a dynamic and powerful profession and force.

Have you ever been in a debate with a colleague about a legal issue and, after a lengthy discussion in which you feel as though you have articulated several good reasons for your position, your colleague ends the exchange with, “Do you have a case for that?” I hate that. I think it is a cop-out.

I wrote this column the day of my father’s funeral. Thinking about my dad got me thinking about my path to becoming a lawyer. I credit him as being fundamental in developing my argumentative skills, if that’s a thing.

The yearly report I received from the lawyer appointed by the probate court to review my uncle’s guardianship over my father listed among his mental illnesses depression, bipolar disorder, borderline personality disorder, and schizophrenia. I am sure there were others, but those are what I remember off the top of my head. I grew up having a problem with authority because, sometimes, those in charge are crazy. Growing up I spent hours upon hours trying to reason with my dad, trying to convince him of what made sense. I resorted to logic but had to ignore certain social norms.

If you’re wondering how I can talk like this about my own father, that’s my point. You have not lived my life. The child and adult roles in my relationship with my dad were somewhat reversed. Still you wonder, because those norms are a powerful thing.

I see the obedience I lack as an advantage in my practice. My first reaction to a new legal question is almost never to look it up. My first reaction is to think about what the law should be and then look for law to support that view. As my favorite professor tells his torts classes every year, “I don’t care what the law is. Let’s talk about what the law should be.” If research rather than reason told us what the law is, then we wouldn’t have so many appellate court decisions.

Who am I to place such high value on my own opinion, you ask? You’re a lawyer with the same training as supreme court justices. It’s your job to use reason to figure out what the law is and to convince others of the same. That does not mean every judge who says, “Because I said so” is wrong. I often tell my son the same thing. But when I tell my son that, and when a judge says that to an attorney, there should be a reason even if that reason is not always explained.

So the next time your colleague tries to side step a debate by asking, “Do you have a case for that?” say, “Yes, this one.”

© November 2015 Brandon J. Evans