Reasonableness

A surprise for some in law school is that a guiding principle in law is the idea of “reasonableness.”  The law often requires people to act the way a reasonable person would act and to do things that are reasonable.  That, of course, is pretty vague and open for debate, but it gives judges and people in society generally a way to talk about what the law requires.  I also find that litigators themselves are well served by behaving reasonably, and they serve their clients by doing so, too.  Behaving like a crazy person fixated on principle untethered from reality often yields poor results, especially since judges are regular people who often try to do what’s reasonable, too.

Why should you read this post about reasonableness?

• It’s reasonably short.

• Someone sent you the link after you said something unreasonable, and this is their snarky way of telling you it’s ridiculous.

• Because our ideal, imaginary, reasonable person would read it.

Peter Paul Rubens, Minerva (Roman Goddess of Reason) Overcoming Ignorance (1632-1633), marked as public domain, cropped by cjmwiki, more details on Wikimedia Commons

Reasonableness in Negligence Law

In contract law, it can be easier to describe what people need to do to avoid liability and to whom.  If I sign a contract with a person, promising to buy apples for a particular price, I breach that agreement if I don’t buy those apples at that price, and the person who could sue is that person.  True, my liability can be more complex than that, but the agreement provides some initial basis to determine liability.

For negligence, however, it is harder to list out all of the things I need to do to avoid negligence and who can sue if I don’t do them.  Accordingly, judges for hundreds of years have tried to explain who owes a duty to others to establish who can sue.  And they have tried to explain what a person needs to do to not be negligent to the people to whom she owes a duty.

To explain that, judges ask what a “reasonable man” would do.  If the defendant did not act like a “reasonable man,” then what they did may be negligent and give rise to liability.  Often this is an “objective” standard, which means that the right question is not whether the defendant thought they were acting reasonably or whether someone exactly like the defendant would believe the actions were reasonable, but whether the judge’s imaginary reasonable person would think the conduct was reasonable.

In practice, this means that people may mitigate their liability by weighing risks and costs.  If there is something low-cost that could prevent something dangerous, then it is reasonable to do that thing, such as a warning sign in front of a hazardous waste site.  But if there is something high-cost that maybe could prevent something not that likely to harm someone, such as hiring a team of workers to shush people in a bar to ensure customers don’t hurt their ears, then that may not be reasonable.

Unfortunately, people may disagree about what reasonable is.  And, as a result, judges and litigants have conflicting opinions that make it hard to predict what people’s obligations and liabilities are.

Reasonableness in Court

Judges and litigants often decide early in a case who is credible and who is not.  Losing credibility in a case means an adversary is less likely to trust you, negotiate with you, or extend courtesies to you.  And losing credibility with a judge means the judge is more likely to rule against your client.  Being reasonable is a way to earn that credibility, and being unreasonable is a way to lose it.

Some lawyers believe they serve their clients by taking maximalist positions.  A lawyer whose client lost their job or suffered a physical injury may have a valid, serious claim.  But if that lawyer demands a billion dollars in damages when the most they could likely win at trial is much less runs the risk that no one else in the case treats them seriously.  Similarly, a client may want a fighter who demands gigantic sums of money.  But the client may be better served by someone who is treated realistically than someone who is considered a joke during the rest of the proceedings.

Reasonableness is not just limited to damage demands.  The day-to-day practice of litigation requires lawyers to take positions on many things, such as extensions for deadlines, objections to discovery requests, and specific legal arguments to advance.  A lawyer whose positions are frequently unreasonable runs the risk that an adversary or judge rolls their eyes at any claim the lawyer makes.  Conversely, a lawyer who is more discerning may retain more credibility.

The need for reasonableness arises from the fact that judges and lawyers are people.  They assess other people and their claims based on their ideas of who is a reasonable proponent and who is a crazy person.

Clients and some lawyers take the approach that only people who shoot for the stars get anywhere, and the world is a big fight that needs a bare-knuckled brawler to win.  But since the job of a litigator involves convincing people, brawling and saying outrageous things is often not the most effective way to convince anyone of anything.

How to Be Reasonable

To be sure, nearly everyone thinks they are being reasonable.  It is the rare client or lawyer who intentionally chooses to say knowingly crazy things.  Instead, unreasonableness often arises from a lack of perspective.

An important question in any dispute is “what will the other side say?” and “what evidence will they present?”  It can be emotionally difficult to consider the arguments and evidence another side will present since they are “so wrong.”  But the judge and jury will hear that evidence, and so it is important to place those arguments and that information in the context of the claim.  Even if you disagree with it, knowing that the people you are trying to persuade will hear it may encourage a litigant to adapt their positions and rhetoric to be more connected to the facts and key arguments.

Another important task for any litigant is a realistic assessment of the magnitude of a case.  Federal judges hear all kinds of cases, from multibillion dollar disputes and terrorism criminal cases all the way through disputes over tens of thousands of dollars.  A lawyer who acts like their case is the greatest injustice of all may come off as annoying to a judge that just had to sentence someone to prison or who had to decide an issue of national importance.  While the case is incredibly important to the client, the lawyer’s job is to persuade the judge, and a more subtle argument may carry more weight than histrionics.  The reverse is also true: a defendant who minimizes a serious injury or the concerns of a weak plaintiff may lose credibility to a judge who sympathizes with an underdog.

Finally, reasonableness also may involve picking battles.  A lawyer who fights about everything in a case may annoy a judge.  And while being annoying can be a strategy to provoke another side to settle, my experience is that a good working relationship yields more productive settlements than antagonism.  Working cooperatively and only fighting when there are genuine intractable disagreements is the best way to get a judge to seriously consider the arguments and treat a lawyer and their client with the greatest level of care.