A Science of Open-Mindedness

While I am a prophet of the new world, exposing the nightmare realities lurking behind the comfortable inanities of spam email, trained in law, and happily practised it for many years. I feel no disjunction between these two, but some others seem to: people who meet me through my writing are startled to discover I am a cog in the oppressive machine; that I do not come across as overly judgemental. Which may be the issue: lawyers are generally not quick to judge.

The portrayal of law, both in the news and fiction, is focused on a tiny part of a tiny part of law: interesting disputes that took time to resolve. Ask a random person about what lawyers do, you will probably get either a polemic about how they done them wrong, or a description of Kavanagh QC. Ask a random lawyer about what they do, you will probably get a description that revolves around advising people on their legal options then quietly following the chosen route.

Lego Lawyer
More than a gut reaction
Tony FischerCC BY 2.0)

Even when there is a real dispute, lawyers do not cleave hard to a single opinion and refuse to consider alternatives. Rather, they consider the alternatives as hard as the one they are instructed to advance to best understand and highlight the risks. In law the absolute truth is only visible as fragments reflected in evidence. So a good lawyer considers the odd possibilities: not just what if a client is right or wrong, but what if neither side is; not just how something is close to existing law, but how it is critically different.

Outside the realm of disputes, most law is future-proofing against the issues upon which litigation focuses: anticipating what might go wrong with a house, or a trust fund, or an international distribution agreement. But doing it in a way that meets the client’s needs.

This focus on providing several alternatives is particularly evident in the number of clients who come in fury and leave in contentment. Many people are involved in law by external circumstances: they are involved in an incident, or see they have a possible problem on the horizon. However calm and reasonable they might be normally, their emotions are often triggered. They see an outcome (e.g. an admission of fault from the other driver) and mark that as success. And, if that is what they instruct, that is what a lawyer will try to achieve; but first and throughout a lawyer will also consider other options (e.g. paying for the repair of the car without formal admission). Frequently this offering of alternatives will resolve a dispute before the discussion of who might win in Court has really begun.

So, law might actually be a science of open-mindedness.

Of course lawyers do form snap opinions sometimes. Tell a lawyer someone parked on a double-yellow line and they will think one of the same range of immediate thoughts about parking enforcement and regulatory offences as anyone else; but wherever they personally fall on the issue of double-yellow lines, they will also almost certainly have also thought of several ways this specific instance might be more or less excusable.

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