Law and Probability, Part I

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The practice of law is all about informed decision making.

A competent lawyer should have a broad familiarity with the law in the areas in which he or she practices. By applying the law to the facts of a particular client’s circumstances, the lawyer makes an informed recommendation about a path of action that will best help the client achieve their goals. Sadly, nothing is certain in the law. The law is a human process designed for governing the actions of human beings – and humans are eminently fallible.

This means that all legal recommendations are ultimately probabilistic judgments.

I remember my first legal brief in my first legal writing class 1L year. The assignment was to provide a “short answer” to the question of whether a person was entitled to sue based on a particular set of circumstances.

The fact pattern seemed clear. So, I gave a very short answer.

“No.”

My professor came down hard on me. The answer to a legal question is never a simple “yes” or “no,” answer, I was informed. If something seems certain, the correct way to phrase a recommendation to a client is “almost certainly yes,” or “almost certainly not.”  There could be variables that could impact the result that might not be immediately obvious based on the version of the law and facts as you understand them. Legal certainty is impossible.

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