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23 July 2024

Twelve Common Misconceptions About The Law

1. All laws are crimes. 

The law regulates lots of conduct that is not punishable by incarceration or a punitive criminal fine. Lots of laws, instead, make one person responsible for paying damages to another person if their rights of violated. For example, broken promises are almost never crimes. Other laws, like property and inheritance laws, define people's rights in the absence of misconduct. 

2. Statements from interested parties aren't proof. 

Sworn testimony from anyone, even someone with an interest in a case, is proof. Many cases in the U.S. are decided based upon sworn testimony from a single witness without any corroboration. 

3. The law is deterministic. 

Many people believe that the law establishes one right answer that is, in theory at least, knowable if you know all the facts. But, in reality, in many areas of the law, there are "standards" that provide broad, non-fact specific guidance on how to resolve legal disputes that have to be applied on a case-by-case basis. For example, it is not possible to know in advance how a claim to recover damages for "negligence" will be decided, or which spouse will get what property, in advance, in close cases, even if you know all the facts. The law is more like quantum mechanics, where the true state of a system isn't knowable until it is observed and is uncertain, than it is like classical physics. 

4. Judges are umpires. 

Judges have considerable discretion in decision-making. Often, there are multiple outcomes which a judge could legally determine which would be upheld on appeal. There is considerable room for a judge's worldview, norms, biases, and preferences to influence a judge's decision. This is also true, to a lesser extent, for juries. 

5. Words always mean the same thing. 

In the law, the meaning of words, including legal terms of art, is context specific. A word can mean one thing in one statute, a different thing in another statute, and a third thing when used in a particular way in a particular contract. Even in contracts, the same words don't always mean the same thing in every contract. 

6. The law is universal. 

The law is different in different places. The law in Ohio or France is not necessary the same as the law in Michigan or England. Even in a single place, the law is constantly changing as appellate courts make new legal precedents, legislators pass new laws, and government officials adopt new regulations.

7. All laws are statutes.

In the U.S., we have what is called a "common law" legal system, which means that many areas of law are governed by court decisions in areas where they have no statutory guidance. Many laws are also subject to regulations and other binding executive branch legal determinations.

8. The correct law to apply to an event is clear. 

Particularly in contexts like interactions on the Internet, there are multiple plausible place's laws that could apply to a case. You often can't know in advance which place's law will apply and the law that applies to a situation could be different for different issues in the same case. Sometimes the laws of multiple law makers apply simultaneously, for example, when you must obey both federal law and state law at the same time. There is also often not just one court or tribunal where a legal issue can be tried. 

9. Evidence presented at a trial can be corrected or supplemented later. 

In U.S. law, once all evidence and arguments are presented at a trial, this is, to a draconian extent that can only rarely be corrected, all that you can say about a case. Once a trial is over, you can't go back and provide more evidence, or correct errors in the testimony that was presented. In many kinds of cases, you must finally determine which evidence you will or will not use at trial well in advance of the trial itself and can't even supplement it at trial because you realize that some other evidence would have been helpful to present. Likewise, usually, you can't raise new legal argument on an appeal that you failed to make at trial. 

10. An appeal can correct any error made at trial. 

In U.S. law, trial court decisions are mainly subject to appeal only if the court decides a legal issue that was presented to it at trial incorrectly in a way that influenced the outcome of the case. Mistakes made by a trial court about the facts can be corrected on appeal only if they are extreme and the facts that were actually presented at trial were almost completely contrary to how the court ruled. 

11. Every wrong has a meaningful legal remedy.

Many things which are a morally wrong, or even violate a clearly stated law, can't be remedied legally. Sometimes a statute of limitations bars relief. Sometimes no one has enough of a personalized interest that is harmed by the law to bring a lawsuit to enforce it. Some laws simply state a legal principle without having any penalty attached (like adultery in Colorado for decades before it was finally removed from the law books). Other times only partial compensation or relief is possible, or legal remedies exist but they are so costly to utilize that any benefit you might receive is outweighed by the cost of enforcing your rights.

12. Talking to people isn't billable legal work. 

A huge share of the work done by lawyers is talking to their clients, talking to other lawyers and staff in their own law firms, talking to other lawyers, and talking to other people related to the case. A phone call with a client is almost always billable legal work. So is an office conference with another lawyer or staff person in the law firm. Billable legal work is not only final transactional documents produced, documents filed in court, or appearances in court. The behind the scenes analysis and discussion of your legal issues by a lawyer is frequently the most valuable part of the services that a lawyer provides. In a related point, lawyers don't, and aren't expected to, know all of the relevant law from memory. Legal research is routinely part of the work provided by a lawyer.

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