Friday, December 17, 2010

The Truth About Legal Research

Don't want to read a post about legal research?  I'll spare you the details and cut to the simple conclusion.  Regardless of the question, when you're researching the law there is no "right" answer.  Ever.

I'll just say that one more time:  There is no right answer.  No one is ever "right."  Might as well stop fighting, because you cannot -- by definition -- win.

Or rather, you can win -- you can win in court, for example, or you can see a law you believe in enacted -- but that's a different meaning of the word "win."  You may have won, but that's no guarantee you were right.

I know this not because I've won and I'm being humble about it, but because I've been right and still lost.  I'll get to that story in a moment.

Okay, now that we've culled out the casual visitors, I'll expound on this thesis.  I have three stories to share, and they all tell the same thing:  No matter what support you have for your conclusion, it's not right the way the laws of mathematics are right.  Your answer is just very well supported.  As you'll see, that's no guarantee.

Story #1:  My father started law school in 1938.  Back then students at Yale were required to write term papers, so my dad wrote one on a very recent Supreme Court decision that had overturned 100 years of federal case law and precedent.  My dad was meticulous in his explanations of how the Court got it wrong.

The case?  Erie v. Tompkins.  This is a case that everyone who's attended law school in the last 70 years has studied -- it's the underpinning of all civil procedure in federal court.  In the pantheon of established law, it's right up there.  But in 1938, it was a shocker because it eliminated the notion that federal courts and all the cases decided by federal courts followed a single common law.  If you slip and fall in Illinois, you may recover in your tort case where under Texas common law, you might not.  For a hundred years before Erie, federal courts didn't have to bother with the state law.  After Erie, state law was controlling on federal courts.

The point here is that a case we lawyers all take for granted was once a screeching U-turn by the Supreme Court.  And if they could do that once, they can do it again.  So no precedent is ever 100% certain.

Story #2:  When I was a corporate bankruptcy associate at the second largest law firm in Philadelphia, I worked on a case in which we represented a consortium of creditors in a Chapter 11 reorganization.  Our clients had decided on a course of action that was unorthodox but not against the law.  Our job was to convince the Bankruptcy Court that it was in the best interest of all the creditors to go along with this scheme.  My job was to do the research in support of our motion.

On the day of the hearing, I trooped down to court with the litigation partner, the bankruptcy partner, and representatives for the consortium.  We were before Judge Fox, a well respected jurist but one lawyers occasionally found unpredictable in his rulings.  The partners had concerns that the consortium's plan was a long shot, but the case law was solid.

Or so I thought.  In the middle of the litigator's arguments in support, Judge Fox barked at him, "What about Smith v. Miller?" (Not the case's real caption, which I don't recall.)  I hadn't cited the case, so I had no clue what it said, and if I hadn't researched it, there was no way the partners knew what Judge Fox was talking about.  Big time oops!

Smith v. Miller turned out to be an obscure Supreme Court case from 1945.  I dunno -- maybe Judge Fox had written a paper about it back when he was in law school, but he really loved that case.  He actually continued the hearing for 24 hours to allow us time to read Smith v. Miller.  He basically challenged us to distinguish Smith v. Miller, meaning show why it didn't force him, as a federal judge, to toss out the consortium's proposal.

As we were leaving the courthouse, the litigation partner said cheerfully to me, "Bet you want to throw yourself out the window, hunh?"  He got that right!  It's an associate's worst nightmare: to give the partners bad or incomplete legal research.

Only when I read Smith v. Miller, it had nothing to do with our situation!  It was wildly distinguishable except for one attenuated point -- and on that point I found cases from two courts of appeal that flat out said, "Smith v. Miller is distinguishable."

I was able to breathe again.

Judge Fox's reaction?  "Neither of those courts of appeal is the Third Circuit, so I don't have to follow them."  Which technically was true.  Even if those courts had compelling reasons for holding that Smith v. Miller wasn't applicable in our type of case, they weren't the appellate court that Judge Fox had to care about.

Moral of the story?  Judges get to do what they like unless a higher court tells them they can't.

Story #3:  Even the moral to the last story is wrong.  Judge can do what they like.  Period.

Here's what happened.  I'd retired as a lawyer when I moved to a large but sparsely populated county in Pennsylvania.  At the time there were about two dozen lawyers practicing in a county six times the size of Philadelphia.  There's one court and one judge.  I had no interest in practicing law here, but then the local D-List celebrity sued the local historical society and I volunteered my services.  That meant our one judge met me.  He wasted no time asking if I'd be interested in taking on court appointments.  I had no idea what that entailed, but what the heck.  I said yes.

So -- with absolutely no experience in family law, I started representing parties in custody cases, usually involving foster care.  But every once in a while I would be asked to represent a party in a private termination of parental rights case.  Because losing your rights as a parent is a big deal, the county is required to provide counsel for the respondent -- the parent whose rights are to be terminated.

Now I have no feelings one way or the other about terminating someone's parental rights -- there are cases where it's absolutely the right thing to do and cases where it's not.  As a lawyer, my job was to assess the facts, check the statute, read the relevant case law and proceed accordingly.  Two years ago, I got a client (C) who had been served with papers by her ex-husband (X), who wanted the court to terminate C's rights as the mother to their then-10 year old daughter (D).  I was appointed C's lawyer on a Tuesday and the hearing was on Friday.  Because of C's circumstances, she was "appearing" in court by telephone.

Now, it's absolutely true that C had been a mess for several years, had abandoned D, done bad things to X (cheated on him, stole money, etc.).  But even though X knew precisely what C was up to (he'd kept in touch with my client's mother), he didn't seek to terminate her parental rights *until* she was seriously getting clean and sober.  Nothing came out at the hearing that contradicted what I understood were the facts: until my client showed any signs of being more than a dead-beat mom, her ex hadn't cared about her parental rights.

When she was served with the court papers, C learned what state her daughter and X (and X's new wife, their infant son and her two sons from a prior marriage) lived in.  C hadn't spoken to her daughter for 5 years, wasn't able to call or write, and had only recently talked about wanting to play an appropriate role in D's life.

I didn't do a great job at the hearing, but I got the judge to let me brief the case law.  I had several arguments, but when it came to the "best interests of the child" test, I was in luck.  There was a Pennsylvania Supreme Court (which is our highest court) case precisely on point.  In re E.D.M. had the same fact pattern:  mom had played no part in her children's lives for five years when dad, who'd remarried, wanted his new wife to be able to adopt the kids.  In order to do that, he had to get mom's parental rights terminated.  The Orphan's Court agreed; mom appealed.  The Superior Court (intermediate appellate court) upheld the termination of mom's rights; mom appealed.

The Supreme Court reversed on the grounds that it wasn't in the children's best interest to be legally severed from their birth mother.  The kids in E.D.M. were 10 and 12, so that was just like my case.  There was nothing in the case about the kids' mother's prior mistakes, so that wasn't a factor.  Basically, the court said that if you weigh the advantages of a child's knowing where she comes from against the custodial parent's convenience, it's better for the child not to terminate the non-custodial parent's legal rights.

Yippee!  C wins!

(You know where this is going, don't you?)

Here's the thing that makes this so shocking.  The holding in In re E.D.M. is binding on the lower courts.  Remember Judge Fox saying that he didn't have to follow the appellate courts that weren't his appellate court?  That's because lower courts are bound by stare decisis, a legal principle that says a court has to follow a case from a higher court where the facts are the same.  Under stare decisis, the judge in my county should have ruled against the dad.

But he didn't.  And when I moved for reconsideration, he maintained that he wasn't bound by In re E.D.M.

So I appealed to the Superior Court.  And, in the ugliest decision I have ever seen, they upheld the Orphans Court ruling.  They (deliberately?) misunderstood In re E.D.M. and basically ignored it as binding precedent in the test for what's in the best interests of the child.  And they hid their decision by marking it as not reportable, which means no one will ever be able to say, Hey, look what the court did in In re D. -- we don't have to follow In re E.D.M.  In other words, it's still binding law -- only not in my case.  (Do they even know what "binding" means?)

So I requested reargument before the entire Superior Court on the basis that the three-judge panel had violated stare decisis.  Denied.

So I asked the state Supreme Court to consider the case.  I even found a case that was (maybe) just like mine, in which the Supreme Court did apply In re E.D.M. with no discussion of the facts and just reversed the lower courts.  If they did it there, they could do it in my case.

I lost.

Now, of course, I'm not the point here.  I've heard from C recently, so I know she's okay.  It's really just a matter of time before she meets up with D -- there are too many points of contact.  Plus, C at least knows what she did wrong for so many years.  She may even feel there's some justice in how this case turned out.

I know better.  I know that some number of judges willfully disregarded the case law, the best interests of the child, and the facts (all of which, by the fifth brief, I'd gotten pretty good at arguing) just to let the dad win.  I don't know why.  But I do know (with reasonable certainty) that if I'd been an associate at the number two law firm in Philly when I wrote those briefs, C would still be that girl's mother.  But as a no-name court-appointed lawyer, I had no clout.

Ultimately, politics -- of some sort -- won out over legal principles.

That case broke my heart.  I quit practicing law.  I have no faith in the state judiciary and I don't ever want to step into a Pennsylvania state courtroom again.

The real question is: was I right?  As close as a lawyer can, I got the law right.  But no, I wasn't right.  Because in the end -- in the real world -- I lost.

I don't believe in right answers any more.  And you're not going to convince me that they exist.  When you've seen what actually happens in the world, certainty is a luxury no realist can afford.


  1. I think it was Young v. Higbee Co., 324 U.S. 204 (1945). :-)
    See also that paper of your father's called something like "The Search for Objectivity in Constitutional Law" in which he concluded that there is no objectively right interpretation of the constitution. The best a judge can do is be self consistent, and be open about his premises, so that his rulings are reasonably foreseeable. Unfortunately, that does not prevent the law from zigzagging every time the judge changes.

  2. Now how the hell do you remember that? :-)

    Yes, I thought of Dad's paper as well. And Professor Fitts' Administrative Law class, in which he said the only Supreme Court justice whose decisions were self consistent was Byron "Whizzer" White. Not exactly a name to light up the legal darkness...

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