Tuesday, October 29, 2013

“I Know Not ‘Seems’”

Hamlet berates his Mama with the line quoted above after she has the audacity to suggest that he seems to be having a particularly hard time accepting his father’s death.  At this point, she doesn’t quite know the truth about that death.  Nor does Hamlet.  He just knows that his mother’s wedding to his uncle followed rather quickly on the heels of his father’s funeral:  “Thrift, thrift, Horatio! the funeral baked meats/ Did coldly furnish forth the marriage tables.”  And Hamlet is annoyed at the very insinuation that there is a distinction between what “seems” and what “is.”  He suggests that, at least as far as he is concerned, he does not know the difference between these two states; his “customary suits of solemn black” are not just “trappings of woe” but a perfect reflection of what is within him.
Lawyers, however, know all about the elusive line between what “seems” and what “is.” Or at least they should.
Lawyers spend their days trying to “seem” to know what they are talking about.  They need to “seem” utterly confident to instill confidence in others—such as clients, opposing counsel, co-counsel, judges, jurors.  And if they are good lawyers, they do their utmost to project the image of seeming to know what they are talking about based on incredible preparation.  But at the same time, if they are really smart, they also recognize that they can never fully know what “is” when it comes to the law.  The law isn’t susceptible to that state of being.  The law is forever changing; and the facts to which even seemingly settled law must be applied are so infinitely variable that conflicting interpretations are always possible.
This is why the very best lawyers are like Socrates and accept that they know nothing.
You may think that lawyers are supposed to be professional know-it-alls.  For lawyers seem to know all kinds of things.  And in fact, lawyers tend to be relatively well-educated.  But they do not really go to law school to amass knowledge in the form of information.  And, alas, the traditional law school curriculum does not permit students to gain much knowledge through practical experience.  Instead, students come to know little more than a process—an analytical way of probing seemingly intractable problems.  Knowing how to do that is certainly not “nothing,” but it is not what must people think of as knowledge-acquisition.  And because of what goes on in law school, most practicing lawyers agree that recent law grads know nothing—at least they know nothing practical and, even worse, they may not even know how little they know despite what “seems.”
I remember vividly during one of my first summer jobs as a law student being struck by how little the seasoned trial lawyers for whom I was working seemed to know.  Why are they asking me to research whether a company’s press release is admissible under the Federal Rules of Evidence?  I thought.  Don’t they have all that stuff down by now?  It took me a while to realize that lawyers could not possibly carry around a body of knowledge in their heads to scan internally each time they were confronted with a new legal issue.  Sure, they certainly know that the Federal Rules of Evidence exist and that those rules include stuff about hearsay and exceptions thereto.  But how these rules have actually played out in trials where judges were required to making admissibility determinations in the face of objections—these things do not come up every day, especially since so few legal matters ever make it to trial; and only a tiny fraction of cases that result in a final judgment ever lead to appeals, let alone appeals involving the precise evidentiary issue that you suddenly have to worry about right NOW.  Besides, the variations with respect to how any given legal rule might get applied in a particular venue, given the particular human players involved, can change in an instant everything one thinks one knows about how a certain matter should be resolved. 
So lawyers really can’t expect to “know” much.  They are supposed to seem to know, while knowing that one can never really know.  Because whatever Hamlet may think, most of the time there is no is there to know.  And thus there are only “forms, moods, shapes” to denote what is true, mere “actions that a man might play” to serve a momentary purpose.  [Hamlet, I.2]

1 comment:

  1. Hamlet berates his Mama with the line quoted above after she has the audacity to suggest that he seems to be having a particularly hard time accepting his father’s death. Lawyers in Mayfair