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Uncertainty

One of the most difficult things about being a lawyer is living in the gray. There are many reasons why we live in a field predicated on uncertainty and that can make things stressful.


Changing Laws and Regulations


One area in which I practice is cannabis law. The only consistent thing about this realm is that it is always evolving. A lawyer can provide guidance one day and that guidance could be outdated by next week.


Different Interpretations


Laws and rules are often subject to interpretation. When it comes to something like a speed limit, there's not much to interpret but when the applicable law or set of rules is complicated, there is nearly always (if not always) room for interpretation.


Unpredictable Decisions


I'm sure many of you have had a client ask you something like this: "What are my chances of recovering something?" The problem with this question is that it is quite literally impossible to answer - there are many variables that go into determining the outcome, including, who the judge or arbitrator is. I often get the sense that people believe the law is an objective thing that can result in a definitive answer, but this is rarely the case. That is why litigation and arbitration exist.


Complex Facts and Disputed Facts


Legal issues often involve a complex set of facts. It can be difficult to ascertain the facts of the underlying matter - sometimes they are in dispute, sometimes they are unclear, and sometimes there is more going on than meets the eye. The whole "two sides of every story" adage makes a lot more sense after practicing law for a while. While I hear my client's side of the story, opposing counsel here's their client's side of the story and the degree to which those stories can differ is dramatic.


Diverging Case Law


One of the odd things you notice in practicing law is that case law is often inconsistent to a degree. This is one reason the adversarial nature of our legal system can be frustrating. Even if a majority of cases go one way, there are often exceptions based on specific factual distinctions between cases. This means that both sides in a matter often have - at least - reasonable arguments supporting their position.


Given the uncertainty involved in practicing law (whether in litigation, statutory interpretation, or contract interpretation), one thing I try to keep in mind is that I am representing my client and while I may disagree with opposing counsel's view of things, if I were hired by the other party, odds are I would be making the same or similar arguments as opposing counsel. This is one reason that when opposing counsel huffs and puffs about being in the right, I point out that I am paid not to be convinced by their arguments, just as they are paid not to be convinced by mine. This also helps me better serve my client because it allows me to look at things more objectively and provide better guidance to my client.


Uncertainty is tough and lawyers live in a world of it. Acknowledging the gray area in which we often find ourselves can help reduce anxiety, and it helps me offer clients a more balanced view of the case - some clients may want you to "be the bulldog" and you can do that if you choose with opposing counsel, but when lawyers pretend there is no gray, they may find themselves overpromising and underdelivering.



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