Saturday, October 22, 2005

What Does it Mean to Follow the Law?

While in a Beaumont, Texas courtroom I recently overheard an interesting discussion. It seems a small child had somehow wandered out of his elementary school and then been found outside, wandering a busy street. The parents sued the district and their case was now concluded. (I assume they lost.) Next, they filed a second lawsuit against the superintendent of schools, suing him personally for the negligence that led to the child's harm. (What that harm was, I do not know. Probably some alleged emotional distress.) This case presented serious problems, but the plaintiff's attorney was undaunted, possibly because this was, after all, Beaumont--a plaintiff's venue if there ever was one. The exchange was interesting:

Defense counsel: Your honor, the [school-law] statute specifically addresses negligence claims against the school district. If I might direct the Court to Section 42, as noted in our brief at page 8, the State of Texas has specifically stated that negligence claims against the superintendent of schools cannot be brought based on allegedly negligent actions of district employees.

Judge to Plaintiff's counsel: Did you address this statute in your brief?

Plaintiff's Counsel: Well, your honor, . . . I've read the statute. But no, I did not specifically address that point in my brief. But your honor, I would simply urge the Court to consider: this is a case of negligence, your honor. I mean, the child got out of the school and was walking up and down on College Avenue, a major thoroughfare in this city. Now your honor, that sort of thing does not happen--it cannot happen--without negligence. This is bold, flat-out negligence of the worst kind. And it is the superintendent's responsibility. I mean, he was in charge. He was the man. And he let this little boy wander out on the street. I mean, these parents entrusted their son to the school, to the superintendent....

Judge: But what about the statute? Does it not expressly abrogate this suit? Doesn't the statute say you can't do this?

Plaintiff's counsel: Well, your honor. This is a case--Your honor, I am simply asking that the Court would, in its discretion, just consider the negligence in this case. I mean, this man....

I was dumbstruck. Maybe I am naive. But how could he stand there and talk about discretion? How could any self-respecting attorney stare in the face of a statute that says "You can't do ABC" and ask the judge to let him do ABC? In law school, one of my professors had a question: Could you make that argument without a bag over your face? I couldn't. But I know many who could--and some who would argue anything less was not serving their clients. It's as if the law means nothing. Who cares what it says, as long as you can give the court a way to read it in your favor?

And that, my friends, is precisely what is wrong with the law today. No--not with the law. That is what is wrong with legal practice today.

Words mean something, right? Even legal documents. Especially legal documents. They mean what they say and nothing more or less. Sure, there is room for interpretation and application. That is the judges' role. But there is not room for fiction, for creative writing, for arguing for results exactly the opposite of what is written in the text. (Even though a growing body of caselaw can make it seem otherwise.)

Joseph Story, both a professor and a Supreme Court justice, wrote "A constitution of government is addressed to the common sense of the people; and never was designed for trials of logical skill, or visionary speculation."


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