I Still Don’t Know

I wrote a post five years ago that I feel strongly about. It was about the humility I needed to remember in my work as a litigator. The real world is more complicated and unpredictable than we imagine, and clients need to be reminded of that fact when it comes to litigation. When I give them predictions about how their case will turn out, they may not be able to overly rely on these. It’s not that lawyers don’t know anything; it’s that we can’t know everything.

In the years since my original post, I have encountered humility in different ways, and so I share updated thoughts on the subject here.

• Even though I still do not know for sure what will happen in any given case, clients pay lawyers, in part, for our guidance. So it is not enough to just tell a client that I have no idea how their case will go. Part of the work of a litigator is to tell the client about our past experiences and their case’s possible outcomes. This includes discussing the likelihood of each outcome and making sure the client isn’t clinging to false hope, nor are they more afraid than they should be about their legal future. This conversation grounds the client in reality, while at the same time acknowledging that we face unpredictability.

• Federal appellate courts have become more willing to defy conventional legal expectations in the years since my original post. What seemed to be bedrock principles of law, like the Chevron deference and abortion rights, had cases reversed by the Supreme Court. “Unprecedented” is now such a precedented concept that it was voted Word of the Year, and this applies in law as much as anywhere else. It is important for litigators to remember how difficult it is to predict the future. We may think we know how a litigation will proceed, how courts will apply the law, or even what the relevant law is. We may be wrong.

• Another area of uncertainty is the relationship between attorney and client. When I speak with a client, I don’t necessarily know what else is going on in their life, whether they understand everything we discussed, or whether they will follow my advice. A new client is essentially a stranger; we will have to work together to make important decisions under tight deadlines, and I will have to ask a lot of questions.
  
  Clients sometimes bristle at this. If I ask them how much they understand a complex issue, they may feel they’re being called incapable. If I try to suss out the facts behind what they are telling me, they may think I see them as dishonest. But this is just part of carefully planning to get the best outcome for them. Seen through this lens, questions are a sign that I am thorough and will think things through in all aspects of their case.

***

The legal profession attracts a lot of people who like to seem smart. We like to pretend we’re in control. Yet part of maturing as a litigator is getting more comfortable saying, “I don’t know.”

I say this a lot in my work, and I advise clients when it is appropriate for them to say it, too. It’s an awkward thing to say. Sometimes, it is the smartest thing to say. In regular conversation, it’s acceptable for us to make guesses say things we think we know but aren’t absolutely certain are true. But when receiving legal advice and in legal proceedings, people need to know that when their lawyer says something, it’s correct. And that’s why litigators often say “I don’t know” until they can be sure what they’re saying can be proved.

Why should you continue to read this post about disclosing uncertainty?

• You’re wondering why you’re paying high hourly rates to someone who seems to know nothing.

• You’re a fan of epistemology, and this post hits the spot.

• I don’t know.

Image credit: Mauro, Cat & Question mark, CC BY-SA 2.0

I Don’t Know in Legal Discussions

Particular lawyers advise clients on particular areas of the law. For example, a real estate lawyer may know without checking what the requirements are in their state for transferring title to a piece of land. An election lawyer may quickly be able to say what documents need to be filed before a candidate begins fundraising. These requirements are set by regulations, which can stay fixed for a long time.

The focus of a litigator’s practice is usually not to advise clients how to apply laws going forward, but whether past actions violated a legal obligation. No litigator should say with confidence how laws will apply to a dispute on day one. We will need time to study contracts that govern the relationship between the parties in a dispute, communications that may have modified or violated those contracts, relevant laws, or new cases that may apply in legal arguments.

So when clients present me with a situation and ask what the law permitted them to do, my answer is often “I don’t know.” Even though I know basic contract principles, a review of case law may reveal that courts in that county interpret a provision differently than I expected. There may be no legal decision that is directly on point, and I cannot definitively say what the law is because courts are unpredictable (note to self: good name for a podcast?). And the first read of a complicated contract may not show a crucial detail.

Even though I say “I don’t know” at first, I usually follow that up with, “but I can find out.” Legal research and document review leads to solid advice, even if no answer can be absolutely certain. Certainty is what judgments are for.

I Don’t Know in Legal Documents

I discussed in earlier posts the role that complaints and answers play in litigation. In those documents, litigants set forth allegations and state whether they admit or deny them.

But attorneys cannot sign complaints unless they have some reason to believe the allegations in them are true. For example, Federal Rule of Civil Procedure 11(b)(3) requires an attorney to perform “an inquiry reasonable under the circumstances” when making representations to the court that “the factual contentions have evidentiary support.” If attorneys make allegations without that support, rules require them to formally admit they could be wrong, such as by saying the allegation is only “upon information and belief.”

Similarly, attorneys may admit or deny allegations in answers, or state (pursuant to rules like Federal Rule of Civil Procedure 8(b)(5)) that the defendant lacks “information sufficient to form a belief about the truth of an allegation.”

Complaints and answers are not the only documents that require this precision about what an attorney knows or does not know. Lawyers phrase their statements carefully to make sure that, if anyone asks, they know they can prove each part of that statement is true.

This practice keeps me humble. Generally, people make the mental leap that they know things because those beliefs are likely to be true or a certain interpretation conforms to their understanding of events. But I have accepted that my understanding of facts is limited. I should not confidently make factual claims in a case unless I have seen proof with my own eyes. This is why even on this blog, when I discuss what other people do, I use adverbs like “often” and “generally,” in recognition that not everyone acts the way I’ve personally experienced.

I Don’t Know on the Witness Stand

One challenge I see in preparing to testify at a deposition or a trial is the tendency people have to say things are true when they are actually not sure. Some people let their guard down during remote depositions. Remember that just because you’re not in a courtroom, doesn’t mean your statements under oath are less binding. In casual conversations, there is usually no penalty for being wrong about matters like exactly what day you started working or whether you read a particular email. And in regular conversation, it is awkward to say “I don’t know” in response to basic questions, especially repeatedly. But in litigation, testimony is studied and parsed alongside legal documents. It is vital to get statements right.

I ask witnesses who will testify under oath to imagine they are signing a legal document that says something is true every time they testify to a fact. Here is where thinking about how you know what you think you know comes in. So if a lawyer asks a witness, “When did you wake up?”, the answer should be, “I don’t know” unless the witness is ready to sign a legal document about a fact. “It was a few months ago, but I woke up at the usual time, seven thirty,” is the kind of answer that can cause problems later. The result of this advice to my clients should be that a witness will say, “I don’t know” more often than she would in normal conversation, but only so that she testifies honestly about the facts she knows.