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Why Isn't My Lawyer More Helpful? Part II

small business lawyer new york city

Last month, I attempted to explain some of the disconnect between lawyers and clients. I started by describing how much law there really is out there. Books and books and libraries and libraries of material. I also did a quickie review of how there are three bodies of law (city, state and federal) and the difference between laws passed by a legislature (“statutory” law, a.k.a. “statutes”) and the way those statutory laws are interpreted by courts (“case law"). This month, I’m going to pick up where we left off, and explain more about case law, how case law affects your lawyer’s ability to assist you, and the reasons sometimes lawyers don’t know things off the top of their heads or themselves have trouble understanding something.

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.

3. Case Law, Although Consistent in a Given Court,

Can Change From Different Court to Different Court


Last month I talked about how the legislature passes “statutory law,” and then the courts are tasked with interpreting that law (thereby making it “case law”). I also explained the way courts typically interpret the same set of facts and laws the same as they previously did - this provides consistency - to the public. In other words, if in 1970, person A with a set of Facts B, involving a set of laws C, went to court and the court ruled a certain way, then in 2010, forty years later, if there is a person X with the same set of facts of B involving the same laws of C, person X should expect the result that person A received (provided the statutory law did not change since then).

Stare Decisis, a.k.a. Precedent

Incidentally, this doctrine, of future courts relying on the decisions of previous courts, is called “stare-decisis”[1] which is Latin for “let it stand” (actual interpretations vary slightly). By the way, it’s pronounced “Stair-Ree Dee-Sai-Cis.”[2] Occasionally, courts *do* change their minds about previous decisions, usually either because of public policy reasons, or perhaps because the statutory law (remember the “raw law” the legislature passes) might have changed slightly. Usually, though, courts follow precedent, that is the rulings of previous courts.

However, this system isn’t perfect. For a few reasons. One, in New York State, there are three levels of courts: (1) the Supreme Court,[3] which no kidding, is the lowest level of court (well, technically, there are even lower courts, but maybe we’ll have a larger discussion about that some other time); (2) the Appellate Division[4] of the State Supreme Court (3) finally, the Court of Appeals.[5] What this means is that the Appellate Division can overrule the State Supreme Court, and the Court of Appeals has the final say.

So, let’s say the New York State Supreme Court, rules for Person A, on Facts B, and laws C a certain way. This means, the New York State Supreme should always rule this way, for person X or person Y or person Z as long as the facts are still B and the law is still C. However, the Appellate Division can overrule the State Supreme Court. What happens then? Well, at that point, from then on, the State Supreme Court is supposed to follow the Appellate Division’s ruling - all the time. If for some reason it doesn’t, whoever got the “wrong” decision from State Supreme Court can appeal it to the Appellate Division and get the “right” decision. Of course, the same principle works with the New York Court of Appeals, which theoretically has the final say - at least in New York State. In fact, the Court of Appeals can even overturn the Appellate Division and say the State Supreme Court was right all along!

But wait! It gets even more complicated. In New York State, there are four judicial departments![6] Huh? It means there are four sets of separate but equal mini-court systems in the State of New York, each with their own Supreme Courts, and Appellate Divisions. So, how does that work? What happens if the State Supreme Court (which is the lowest court) in the 1st Judicial Department for person A, facts B and laws C rules a certain way? Does the 2nd Judicial Department have to follow that decision if person X also has facts B and laws C? (drum roll). NOPE. Yuppers, you read that correctly. But, wait, Jeff! Wait! What about judicial precedent, and that Stare Decisis thingy you said above?

Let’s Look At An Example of the Way

Precedents Work Across Different NYS Courts

Ahh. That doctrine only applies within the same court system. Confused? Let me try and help with a concrete example. Let’s say, Person A made an oral contract (meaning nothing was in writing) with Person B in Manhattan (that’s the 1st Judicial Department), where Person A promised to ship DVDs (remember those?) to Person B for a certain price in a month. Before that month expires, Person A changes their mind and decides to sell their DVDs to Person C and breaks the contract. Person A claims there was nothing in writing, so there never was a contract to break; Person B claims there was a contract and wants their DVDs at the price that was negotiated. They go to court, first stop the State Supreme Court, Civil Division, 1st Judicial Department. Let’s say after a judge trial, the judge rules for Person A, saying there is no contract.

Question 1: A year after that decision, if Person X had the same kind of oral contract with person Y in the 1st Judicial Department, should the judge (whether the same or a different judge) rule the same way?

Answer: Yes. That’s judicial precedent (stare decisis) and the judge should rule the same way, because that’s the way the court did in the past.

Question 2: What if Person X and Person Y, same oral contract, same other facts, were in the 2nd Judicial Department (which would be Queens, Brooklyn and some other places), would the judge in the 2nd Judicial Department be required to follow the decision of the judge in the 1st Judicial Department?

Answer: No. In practicality, many times judges across Judicial Departments look at the decisions their colleagues made, but the judge in Judicial Department #2 is not bound by the decision the judge made in Judicial Department #1.

Question 3: Assume, back in Judicial Department #1, the Appellate Division overrules the State Supreme Court, what then?

Answer: From now on, all State Supreme Court judges in Judicial Department #1 should rule the same way as the Appellate Division for that Judicial District. This *still* does not directly affect Judicial Department #2 (or #3 or #4 for that matter) but could influence them indirectly (because they usually look to see how their colleagues ruled on the matter).

Question 4: Finally, the case reaches the Court of Appeals, which makes a final ruling. Does this settle the case for once and for all? Probably.

Answer: The Court of Appeals affects *all* Judicial Departments (in New York). However, sometimes these cases can be appealed to the federal level (and sometimes cases involving state law begin in federal courts - long story...), and there are three levels there. So the fun might never stop! So, the bottom line, is theoretically, all four Judicial Departments could have separate decisions on the same set of facts, dealing with the same law, until, the Court of Appeals decides the matter for the entire state.

Speaking of federal court, I should note that it has its own laws and rules of doing things, but often times the federal court applies a state's laws instead of its own. It’s very tricky. Plus, imagine you operate a company in New York State, and you are being sued for a contract by someone in New Jersey. Do we apply New York or New Jersey laws? What if your lawyer is only licensed in one state but not the other? Either party could try and move the court to federal court, on something called Diversity Jurisdiction;[7] this keeps a person from New Jersey from not getting a fair shake by a New York court (or vice-versa). Now what? Apply federal rules and laws? Or will the feds just use the state laws and rules, and if so, will it use New York or New Jersey? Is there a clear answer? Will it require some research by your attorney? What do you think?

What Does This All Mean For You?

Well, if every time, courts just made up their mind as they felt like it, you would feel that justice was completely arbitrary and no one would have any expectations (because the judges would make it up new, for each and every case). As you can see, this is hardly a perfect process, but over time, many things, over time, become settled, more or less.

So, after consulting the proper precedents, lawyers can often make very good educated guesses or predictions about whether you will prevail or not, or in what ways - although nothing is ever guaranteed. However, I explain all this because this has to do with your lawyers - remember them? That was the whole point of this series - to help you understand what they have to deal with, so you can get have a better idea of the reason they might sometimes appear … uncertain. So, let’s get back to that.

4. Lawyers Often Need to “Look It Up”

If you ever have consulted an attorney, how many times have you received the answer, “I don’t know” or “I’ll have to look into that.” Frustrating, huh? And probably, at least in the back of your mind, makes you wonder how competent that lawyer really is. I mean, when a person goes to a professional, such as an accountant, a doctor - or a lawyer - that person understandably expects that professional to know what they’re talking about.

Indeed, that’s what state licensing requirements are all about - making sure your lawyer has, at least basic skills. So, if they are so competent, why the uncertainty? In this regard, I can’t really speak about accountants or doctors, but when it comes to lawyers, maybe I can shed a bit of light on it here. The thing of it is, as we covered last month and above, there are literally hundreds of thousands if not millions of pages of law to know in this country. Let that sink in. Have you ever counted to a million? From number one, by “ones”? Now, can you imagine reading one million pages of anything - let along thick legalese? Last month, I gave you an example of a typical passage from a business law. Could you read a million pages of that? Could anyone? And then remember it all?

No one can. Lawyers, of course, in law school, read thousands of pages of law, including statutes and cases. However, they also read practice guides and professional commentaries. Even lawyers are confused by many laws, especially the first time they read them - so, they rely on guides written by experienced practitioners to break it down to something between plain English and full-on unadulterated legalese - think of it as a “halfway-house” for lawyers.

Sure, of course, if a lawyer sees the same situations frequently, they will have a very good idea what the legislative statutes say, and how the courts have interpreted them through case law. An experienced litigator certainly knows most of the court rules by heart, or nearly so, at least for the type of litigation they do. Similarly, a contract attorney, generally knows “standard” types of phrases and passages likely to be found in almost any contract.

However, often times, clients - that means you - come to us with something slightly different than we have seen. Even a small difference of facts, situation, or court can completely change the result: two people instead of one person; a contract dispute versus what’s called a “tort” action (a tort is when someone injures another person, which could be similar to breach of contract[8]). Even a tiny geographical distinction, bringing the case in Queens versus Manhattan, could lead to different decisions (1st Judicial Department vs. 2nd Judicial Department).

A lot of time, in each of these situations, there are similarities, and the lawyer, off the top of their head, can provide a fairly reasonable prediction of the strengths and weaknesses of your case, the laws that will apply, and the possibility of the outcome. However, my experience is most of the time, we lawyers like to look up the most recent laws, double check nothing has changed since we last researched the matter, ensure we remember everything accurately, and that there is no “tiny distinction,” as in the above paragraph, that changes our anticipated result from A to B.

We recognize this frustrating to our clients that want a certain answer, a definitive cost estimate, and most importantly peace of mind and predictability. In some regards, this is no different when a patient goes to the doctor with a problem, gets a prescription and wants a “guarantee” of a cure, but only gets assurance that the “proper steps are being followed” which leads me to my next group of situations to be discussed.

(to be continued)

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