Judgment and Uncertainty


All of this discussion of judgment versus experience hits me where I live.  Like many of y’all here, I wear multiple hats.  One of them, by which I make my living, is lawyer.  Another, by which I have in the past made a living, and may get back to again, is college English teacher.  In both vocations, I deal with multiple levels of certainty and uncertainty. 


As a lawyer, I’m always being asked by a client or potential client, “will we win this case?”  Sometimes I can say, “Almost certainly, yes. The law is on our side, the facts are on our side, the other side’s case is horsefeathers, and the judge likes me.”  More often, I get to say, “What we’re doing isn’t winning or losing, it’s getting you more time to move out of your apartment, and yes, we can certainly do that, because this is Cook County and everything happens slowly.”  Or, “No, this is a crapshoot.  You have a legal issue that has never been litigated before in this state, and the other states that have ruled on it have gone both ways.  I have no idea what the judge is going to do.”  Or even, “This argument is almost certainly a dead-bang loser.  But making it will get you more time to figure out what you want to do, and to get it done.”


Clients hate these responses.  If I’ve worked with a client for a long time, and s/he has had a chance to see the court system in action, s/he will accept my assessment.  But the element of uncertainty in the legal system still drives all my clients nuts.  I rarely tell my clients the real basic truth of the legal system, which is that no lawyer is any smarter than the stupidest judge, and that I have suffered some of my most ignominious losses when the law was on my side, the facts were on my side, and the other side’s case was horsefeathers.  And also that I have sometimes won cases in which the law and the facts were dubious at best, but the judge really disliked the other side’s lawyer.


Many of my colleagues have allowed themselves to become what is known in the trade as “good news lawyers,” lawyers who just say, “of course we’re going to win.  I always win.”  This is especially useful during the initial consultation, when the potential client is deciding whether or not to retain the lawyer.  I often see the former clients of good news lawyers on a second or third consultation, after the good news guys have run into an unavoidable run of bad news and the client has gotten disillusioned.  On the other hand, the good news guys often see potential clients I have interviewed, who have decided not to retain me because I can’t tell them what they want to hear.  I figure the good news guys and I end up pretty much even, except that I at least have the satisfaction of not having flimflammed my clients. 


As an English teacher, on the other hand, I get to speak from a position of absolute certainty. “No, ‘between you and I’ is not and never will be correct English.” “Yes, a 3-point outline will help you organize your thinking so people can understand what you are trying to say.”  “Yes, if you write your last paragraph first and your first paragraph last, it will save you a lot of time and trouble.”  And so on.  Most of my students are okay with this certainty, especially with the helpful hint stuff.  Not so much on formal usage, which they tend to think doesn’t matter and isn’t worth the trouble, but since I am the ultimate source of the Almighty Grade which in turn will show up on the Almighty Transcript, they put up with it.  


In college, they know they are dealing with a fundamentally arbitrary system, and they put up with it for the sake of getting a degree, getting a job, and maybe even being able to turn the job into a career.  In court, on the other hand, at best I have been hired by somebody who feels unable to represent him/herself, but probably wishes s/he could.


I won’t even talk about the levels of uncertainty in the health care system, since there are other people here who could do a much better job of it.  I do, however, also teach a course in professional ethics for mental health workers, and I generally tell my students in that course that there are three things a competent professional in any field absolutely has to know: the limits of his or her own knowledge in the field, the limits of knowledge in the field generally, and some other good professionals in the locale to whom a dissatisfied client can be referred.  Unfortunately, the President of the United States can’t do a referral.



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