In Defense of “Law and . . .”

I’d like to emerge from my bar-study hidey hole to make the briefest of observations, one strengthened by this General Overview of Law I Will Never Never Know or Use Again that is commonly known by the shorter name of “bar review.”

Very often I’m finding that if I don’t know the answer to a question, the answer will end up being the one that I thought was the most just.  Not always.  But often.  If I’ve gotta guess, I figure out what I think is fair and guess that.  Even if I don’t know the right term for it, I generally have the thrust of it right.  If I told any of you non-lawyerly types that estoppel prevented XYZ from happening, you’d be all “what?”  But if I told you that somebody didn’t sign a written contract, and went ahead and got all the benefit from the contract, and then tried to say “there was no signed contract” when it comes time to pay their end of the bargain – you’d be all “that isn’t fair!  He got all the benefits, now he wants to skip out on the burdens!”  And then you’d learn that the person is “estopped” from claiming there’s no contract, because he did indeed get all of the benefit from it, and then you’d be like “great!  That sounds about right!”  (And if you, dear reader, are a lawyer and I was supposed to say quantum meruit or unjust enrichment or ratification instead of “estoppel,” well I can’t hardly tell how one of those is different from the other, please don’t judge me!)

Anyway, I learned in my Law and Literature course that all of these doctrines I just named – estoppel, unjust enrichment, etc. – are ways to keep the law just.  They are included in lots of areas of law for the express purpose giving tools to a thinking, feeling judge to apply to prevent somebody from exploiting somebody else via legal loophole.  The particular paper I was reading traced the origins of these doctrines, and some of the outlier cases that applied them in order to receive a just result (Webb v. McGowin, anyone?), and then went on to say that we must always remember narrative in our legal writing.  The judge is a human, and has to read lots of briefs.  If you tell him a good story, he’ll be more in tune with your brief, more on your side, and more likely to use the law to help your client.

This is all super general, ok, but the thrust of it is that judges get bored like everybody else, and if you put a little theater in your act, a little literary razzle dazzle in your fifty page brief, then you’re gonna get through to her.  And because she has the above-mentioned tools at her disposal, her hands are not tied.  She can be swayed.  Narrative is important.  As important as getting the law right, I would argue, because following the story is key to understanding the law.

This is all within extreme limits – you can’t throw literary references into a brief, or make jokes, or go all melodrama.  But you can make sure to tell a story with a beginning, middle, and end, and you can use language and sentence structure that is easy to follow, and you can choose appealing descriptors.  Arguing estoppel is not always a good idea in the brief.  But the very EXISTENCE of doctrines like estoppel show that the law, cobbled together willy-nilly though it may be, has been built up by people trying to achieve just outcomes.  And when you are a cog in the wheel of the justice system, that can be important to remember.

The more I study the law, the more I admire it, I guess is what I’m saying.  So law school’s a mess and it needs to be cheaper, more practical, and harder to get into – and having a zillion “Law and . . .”* classes goes against those goals – but I’m glad I took my “Law and Literature” course.  I think such classes do have some worth, even practical worth.  Even if law schools eventually gravitate toward becoming what they need to be, I hope a few “Law and . . .” classes survive.

*e.g. Law and Literature, Law and Philosophy, Law and Gender.