The Law is a tricky thing but no need to fret.
As a former philosophy major turned criminal defense attorney and someone who is very interested in that quaint and ancient custom called “the rule of law,” I’m continually amazed at criminal defense attorneys who don’t think it’s important to know the law. If I had a nickel for every time some attorney came into my office and said, “You don’t need all these books,” or for every attorney who told me I didn’t have to read as many judicial opinions as I do, I could buy myself lunch. Well, at least at Taco Bell. Still, that’s a lot of nickels.
The point is, if the law matters, then you must read and know the law to be an adequate attorney. To be a really good attorney, you must have some theoretical understanding of the law.
As TheAnthroGeek (quoting Leonardo da Vinci) points out, the concept is not new:
He who loves practice without theory is like the sailor who boards ship without a rudder and compass and never knows where he may cast.
You can get pretty far in life — even as a criminal defense attorney — without ever learning the law. One of the more well-known, well-respected and best attorneys in Fresno (may he rest in peace) “readily admitted that his knowledge of the law was not his strength.”1 And because of overcrowding in the courts, even those few judges who know the law frequently overlook it in order to keep things moving. After all, forcing the State to prove its case can take time, especially in a county where prosecutions are hastily and sloppily-considered and thrown together.2 So long as no one with any power complains, nothing is done.
Nevertheless, even as jaded as I fear I’m becoming — and it only takes one or two encounters with the Fifth Appellate District Court to strip an attorney of the belief laws actually matter — a good knowledge of the law can make a difference.3 This is because the concept of law, if not the laws themselves, still counts as persuasive authority.4 For that reason, it seems to me even more important for defense attorneys to keep current on the law. The more knowledgeable and certain the attorney is, the more likely she or he will be able to counter any false statements of law made by the prosecution — and, trust me, the prosecution will make false statements of law, either knowingly, or from ignorance.5
The moral of this story? Well, there’s actually more than one. We must work against the increasing tendency of our system to sacrifice substance to status. People with the money and the right social status to hire the right attorney fare better than those who do not have money or social status. As the recent Genesis trial (Update 2015: link has disappeared) re-demonstrates, who you are matters as much to the outcome of your case what the law says. (I didn’t discuss that in this posting because I’m trying to write shorter articles.) If, however, the laws actually mattered, this tendency would be reduced by retaining lawyers who care enough to learn the law.6 There’s probably a political aspect to solving this problem, but I don’t have time to explore that in this article.7
Another approach is for attorneys to push back when courts ignore the laws. Yes, it’s harder. Yes, it takes more work. Before you can convince others to follow the law, you must know the law. The better you know the law, the greater the chance you can convince the courts to follow it.