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
