Day 2

I have all sorts of ideas about which to blog, which has actually made it hard to choose one. I think I'll go with an observation I made a few days ago that marries the two things I probably think about most; the law and my kids. Don't worry, my kids didn't get busted; my thought actually has more to do with how lawyers rely on the law to represent their clients and how kids think. Turns out, there's a ton of overlap, which is one reason why I think non-lawyers start to hate lawyers so much. Confused? Me, too. Here's the story:

I was talking with the little boy who lives next door, who is six years old and a very sweet, very high-energy youngster. He has a younger brother, who is four, which is the same age as my son, and the three little boys play together frequently. I was standing on my side of the fence that encloses the neighbors' yard, chatting with the six-year-old, who had climbed up the six-foot-high fence to see into our yard. I suggested that he shouldn't be on the fence, because his mom had told him not to climb it the other day (within earshot of me, unfortunately for him), and he said, "oh, I thought she just meant the fence over there." With that, he pointed a few feet away, to a part of the same fence upon which he was standing.

Well, I know that she meant the whole fence, and he does, too. The part of the fence that runs north-south along their property line is as off-limits to climbing as the part of the fence that runs east-west along the property line. But in his kid's mind, this is a legitimate defense to his clear (to me, and certainly his mother, if she'd witnessed it) violation of the rule. He acknowledged the rule, accepted its validity, and claimed to not be in violation of it. In essence, he was challenging my and his mother's definition of the word "fence."

This is exactly what lawyers do every day. They expose ambiguities in the law and seek to clarify it in a way that protects their clients. Don't get me wrong, I don't disagree with this tactic, in fact, I teach my students to embrace and exalt it. In fact, I don't even think it's right to characterize attacking legal ambiguity as a "tactic," it is a lawyer's duty and ethical responsibility to point out where the law is unclear and help courts make it clearer by deciding whether their client violated the law (or deserves a damages award, or whatever). But it's this idea of challenging what "fence" means that gets people angry with lawyers, probably because they've heard their kids try the same thing with maddening frequency and perhaps disingenuous intent, and they don't want to accept it when an adult does the same thing.

Therein lies the rub. What kids do when they try to defend themselves by pushing the definition of what "fence" means is ask for the adult to whom they are speaking to take a leap of logic (as in, we can all agree that each 36 inch section of the fence is a different fence, right?) with which we cannot, in good conscience, agree. But lawyers (well, good ones who take cases responsibly and refrain from pushing the law past its logical limits (and I would argue most lawyers are responsible in this respect)) generally know better than to ask a court to take giant logical leaps; instead, they seek clarity from the court. Clarity in the law is a good thing; it's what the founders of our legal system wanted to achieve when they chose to craft an adversarial, common law system that would encourage lawyers to represent their clients zealously and reach a just result. In case you're like me and need something concrete to give this discussion context, read on, dear reader.

Here's an example: A local school zone in my town has some fancy speed limit signs that pop open when the school zone rules are in effect (speed limit drops to 15 m.p.h.), and close when they are not. The posted speed limit is 30 m.p.h., which is the speed you are driving when the school zone rules take effect and the sign pops open above your car, instantly dropping the speed limit to 15 m.p.h. At that same moment, a police officer pulls out behind you and clocks you as you begin to decelerate, but it's too late, you've just been nabbed for speeding in a school zone (ouch - expensive ticket and insurance premium). It's not fair, you'd cry, and you'd be right. But to some, a lawyer defending you is defending someone who speeds in school zones, not someone who is helping clarify how many seconds drivers have to adjust their speed when a new speed limit takes effect.

I guess my point here is that while lawyers and kids often employ the same arguments to protect their (or their client's) interests, it's not fair to assume that lawyers are engaging in juvenile tactics to make their case. The similarity comes from the universality and legitimacy of a defense that points out that the rule was too murky to put anyone on notice that he or she might violate it with certain behavior. So the little boy next door's attempted defense was doomed to fail because his mother did a very nice job of constructing a rule that could not be attacked as ambiguous (don't climb the fence). He just needs a few years and some law school classes to help him figure out the better angle ("I forgot" often works better in kid world, although it doesn't work for the court). So don't be mad at lawyers for engaging in juvenile arguments, be impressed by your kids and their clever legal arguments (but punish them all the same, otherwise they'll just keep climbing fences and break their faces).