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Why Isn't My Lawyer More Helpful? Part I

small business lawyer new york city

What do you call 500 lawyers at the bottom of the ocean? A good start.

How do you know a lawyer is lying? His lips are moving.

“Lawyers occasionally stumble over the truth, but most of them pick themselves up and hurry off as if nothing had happened.”

- Winston Churchill

Sticks and stones, my friends. It’s fine. We have tough skins, we lawyers do. It’s a difficult profession, not for the faint hearted, and often times we lawyers feel unappreciated even by our own clients whom we have successfully assisted in the past. And, often, IMHO, the best of us lawyers are able to smile and laugh at ourselves and our own profession. However, it is no joke that there is often a great divide between lawyers and non-lawyers - why is that? Some people feel frustrated that they never get a “straight” answer from their attorney or that they attorney seems woefully unknowledgeable about an area in which they theoretically allegedly practice within.

I thought I would spend this month’s article on some reasons you, as client or potential client, might have trouble understanding some of the reasons the law and lawyers appear so … weird? troublesome? uncertain? And, hopefully that will help you deal with any frustrations or confusions you have with the profession and you’re very own professional, if you’re lucky enough to have your own personal legal representative!

Disclaimer: The following information does NOT constitute legal advice and is only for general educational purposes. Each situation is different and specific legal issues usually require additional research and investigation, so do not rely on this article to address a particular legal issue; also the laws change. So, use this as a starting point to gain a general understanding. This article, although educational in purpose and substance, nevertheless, might be deemed attorney advertising, and prior results do not guarantee future success.

1. There’s A Lot of Law out There (“Statutory Law”)

Every wonder what the deal is with attorneys that only seem to know one area of law or only a group of areas? (like business vs. personal injury and malpractice vs. trusts and estates, etc.). It turns out, there is a LOT of law out there. To give you a “for instance,” for the State of New York State, a company called McKinney’s publishes thick, black bound books (the ones that look very lawerly!), that cover each substantive area of law (i.e. “Business Corporation Law”) and some procedural areas (i.e. the “Civil Practice Law and Rules”).

A typical “set” contains more than 65[1] volumes (each usually around 300-700 pages long), costs about $1,400[2] (and is a steal of a price when you think about it) and takes up about ... I would say ... just guestimating here - about ... oh, I don’t know, maybe about 30-40 feet of shelf space. Mind you, that’s the “raw law” (albeit often with explanatory notes), meaning the laws passed by the State legislature.

Actually, maybe I should take a step back for one quick second to bring you up to speed, just in case you skipped “civics” in school (which they probably don’t even teach anymore - sigh). Wherever you live in New York, there probably are three sets of laws that apply to you. That’s right! You have to obey a minimum of three sets of laws at all times, and you are roughly expected to know them all! Whether or not you are a lawyer!

The government assumes you know the law and you are expected to follow them. For simple things (don’t litter, steal, or murder) that’s common sense and you’re probably ok on your own. Sometimes, though, you still get in trouble like when you forget or never knew “no right turns on red in New York City” and get a ticket! However, for more complicated stuff, the government expects you to hire a lawyer to fill in the blanks for you. For instance if you run a business, you are expected to know and comply with all kinds of crazy regulations.

So, there are city laws, state laws and federal laws (federal means passed by the United States government). Where I live, in New York City, laws are passed by the unicameral (that is, is there is only one “house” of legislators) consisting of 51 City Council Members.[3] More powerful than the New York City Council, is the bicameral (meaning there are two “houses”) legislature for the State of New York, divided in the 150 member Assembly[4] and the 63 member Senate[5] (this is the New York State Senate, not the United States Senate). Then, finally, you have the United States Congress, which you probably already know about. In the United States Congress, you have - again - two houses. The House of Representatives[6] with 435 “Representatives” and the United States Senate with 100 members.

Anyway, these three bodies pass laws, sometimes in cooperation with and sometimes in spite of the chief executive of their respective political bodies (the Mayor, the Governor, the President). Another name for these “raw laws” are “statutes” and therefore collectively they are called “statutory law.” And, as I said above, there are a LOT of these laws. In the State government of New York, alone, there are more than 65 volumes. And let me tell you, these laws aren’t written in nice “easy-breezy” flowing prose, either.

An Example of Statutory Law

If you will please indulge me, I will share a small example:

(a) After adoption of the agreement of merger or consolidation by the board and shareholders of each corporation participating in the merger or consolidation, unless the merger or consolidation is abandoned in accordance with paragraph (b) of section nine hundred three of this article, subdivision (d) of section one thousand two of the limited liability company law or other applicable statute, and the surviving or resulting entity is a corporation, foreign corporation, or other business entity for which the laws of this state do not provide for the filing of a certificate of merger or consolidation with the department of state, a certificate of merger or consolidation, entitled “Certificate of merger (or consolidation) of ․․․․․ and ․․․․․ into ․․․․․ (names of constituent entities) under section nine hundred four-a of the business corporation law ,” shall be signed on behalf of each constituent entity and delivered to the department of state.  It shall set forth:

(1) The name of each constituent entity and, if the name of any of them has been changed, the name under which it was formed;

(2) The date when the certificate of incorporation or articles of organization of each domestic constituent entity was filed by the department of state;

(and goes on to list 10 other factors) (THEN, it goes on to the next paragraph). Notice, also, the way this one law references OTHER laws, that you need to either know or look-up.

How Much of This Stuff Your Lawyer Probably Has Read

The above example I used was from the New York Business Corporation Law on Mergers,[7] describing - in part - the procedures you need to follow to merge companies. Try reading a few hundred of pages of this stuff - and it’s only ONE area of law, from ONE of the THREE legislatures that rule your life. Now, what’s the longest book you ever read? About 3 inches thick? And, likely, what you read was in plain English. It might even have been enjoyable.

Of course, I doubt there is a lawyer alive, no matter how long they practiced, that’s ever read every statute of every one of those 65 or more volumes in New York, nor is it really necessary to read an entire book to really know the law in a given area. However, it gives you an idea of why so many lawyers only master a few areas. Further, these are only the laws that the state legislature passes; imagine adding the laws of the City and federal government and then there's always the possibility other laws will come into play from other states or cities (or even countries).

2. “Case Law” Complicates & Confuses (or Clarifies)

So, ok, no human being, not even Albert Einstein, likely could ever read all that cover to cover. Do they need to? And if not, is the world of law much smaller then? Well, yes and no. I’m going to talk only about State law here (the law for New York State) for the time being, but the principles are similar when dealing with city and federal laws as well. There is something called “case law” that both complicates and clarifies matters, and also adds volumes and volumes of books and laws to the mix - far more than the 65 or so original books.

“Case law” perhaps is most aptly defined as such: “A professional name for the aggregate of reported cases as forming a body of jurisprudence; or for the law of a particular subject as evidenced or formed by the adjudged cases; in distinction to statutes and other sources of law.”[8] In plain English, this means all the complicated and voluminous language from the state passed laws (“statutes”) above, is interpreted by the courts (“case law”). Put another way, a lot of the language in the “raw” “statutes” passed by the State legislature, often is very complicated. Legislators do their best to make it clear and cover all possible interpretations, but sometimes it’s just too complicated or they are trying to say too much at one time, or can’t figure a way to make it any clearer.

Plus, the lawyers that work for the State legislature (who help the legislators translate their ideas into actual binding laws), as well as the legislators themselves, who may or may not even be lawyers, are only human and make mistakes. Also, sometimes what makes sense to them, is incomprehensible to other human beings. I have worked in the New York City Council before, and I can tell you, it’s not always easy to reduce human conduct to … well, words (remember laws are all about governing human conduct).

So, you and I may read exactly the same statute, the “raw law” passed by the legislature, and come away with two different meanings. Usually, in our day to day business dealings, our different interpretations are irrelevant, or we figure out something that works for both of us, and we go on our merry ways. However, sometimes, we can’t agree, and there are important matters of money or principle at stake for us. So, we go to court to figure this out. This means, the court then interprets the law for us - officially.

Why not the State legislature? The place where the laws were passed in the first place? That’s a very complicated history lesson, but that’s not the way our legal system works. The legislature passes the law. The courts interpret it. Oftentimes, the court might look at legislative proceedings or even the thoughts of individual legislators to get a clue of what the intent of the legislature was, but the court has the final say. When it does, the court writes up its decision, and this becomes “case law.”

This case law isn’t usually just a one-off situation either. Next time someone goes to court with exactly the same issue, typically the court doesn’t just make it a “do-over” and start from scratch. On the contrary, the court does the opposite. It goes back to its own history, and looks at it how it ruled on the case the last time. Most of the time, the court, follows exactly what it did last time. Why do courts do this? To give the public consistency. In theory, this way, every time a member of the public goes to a court - with exactly the same issue - the public knows that they will get the same decision.

Now, of course, in practice, the public doesn’t know about these hundreds (thousands?) of court decisions made each year, in the State of New York. But here’s the thing. Neither do lawyers. Again, no human being (except maybe if you have a photographic memory) has the ability to read all of these decisions from all the courts in the state. Don’t get me wrong - many lawyers either look for decisions in areas they practice in, or have automated information systems send them summaries or cases that affect their primary area of practice. But on the whole, I doubt too many lawyers, see all such decisions on a real time basis (counselor, if you are reading this and you do, I would love to hear from you and hear your secret of how you keep up).

But, that’s not the point. The point is, that if you, as a member of the public, ever has a similar legal issue, theoretically, you can look it up or go to your lawyer, and find out how the courts previously ruled on this issue, so you will know if what you want to do is legal, or what your rights are with respect to some other person (like your business partner, wife, customer, employer, etc.).

And this comes full circle to our discussion about lawyers and “why they aren’t more helpful.”

(to be continued)

Hyperlinks enabled - try them!

[8] (from “Black’s Law Dictionary” perhaps THE definitive source of definitions for the legal profession).


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