Principal Sources of Law: Unending Search

Some basics about the law are considered in this article. The first question, obviously, is ‘Where does a lawyer find the law?’ You will be surprised to learn that, in many cases, this involves a search with many of the elements of a good mystery novel. There are obscure factors, and villains and heroes. There are good laws and bad laws. There are old laws and new laws. There are harsh, brutal laws and there are merciful laws. Which is going to apply in your case? Your skill may determine the answer. You may be able to show, for instance, that some particularly harsh rule of law had its origins in social conditions unknown to us today. If so, should it still be applied? All these, and other matters, are considered when a lawyer "finds" the law.




At the outset we must realize this: We have two principal sources of the law. First, we have the acts of the legislature. If there is an act governing your case, your problem is simply to "interpret" the statute (though at times this is no easy problem, words being the slippery things they are). But if there is no statute governing the case, then you have to decide what the law is from what the courts have said about such cases (or similar cases) in the past. But large questions here arise. Are these cases really like ours? And, even if they are, should the law they enunciated be applied today? (This is a question particularly pertinent to the older cases.)

These, then, are the broad outlines of our problem of finding out what the law is. This inquiry (What is the law applicable to this particular situation?) lies at the very heart of the advice we must give, the forecast we must make.

For, obviously, before a lawyer is in a position to counsel effectively concerning another's legal rights and duties and privileges (these are important words to everyone), he must know "the law." This is for the reason that, as we are using the term, it is the law that determines whether there is such a right or a duty or a privilege in the first place and, if there is, how broad or narrow it may be. It is equally obvious that the limits of advocacy must rest, in the final analysis, upon the law supporting the client's position. You would not, as a wise, or ethical, advocate, try to obtain a certain ruling from a court or an official if you knew that that ruling would not stand up when it reached an appellate court because it was not in accordance with what the law really was.

Your advice, then, must rest upon the law. But disabuse yourself at once of the idea that all a lawyer has to do to find "the law" is to look it up in some big book, that if it is an automobile accident, for instance, he merely has to look in the index under "automobiles" to find the law.

If this were true, the practice of law would require no more than an ability to use an index and to read. Yet we know that although men devote their entire lives to its study, they nevertheless feel they haven't gone much past the multiplication tables of the law, so to speak, so vast are the areas still unexplored. If it is true (as it is) that the lawyer cannot get his answers simply by going to a big book, that casts an entirely different light on his problem. And it enormously complicates things. We have seen that when a lawyer counsels a client, he actually does so on the basis of how he believes a court would rule upon the problem, as a question of law, if it were to come before the court. This may sound easy, but is this in truth any more or less than simply predicting the future?

That's exactly what it is. What the lawyer actually does is to forecast, to make a guess. But it's an informed guess, not just a stab in the dark. He bases that guess upon many pertinent factors, not (as the medicine man of an Indian tribe does) by burning a chicken's entrails and observing the color of the smoke. But in any given case what are the important factors? They do not come to him bearing the labels "important" and "unimportant." If a jaywalker is struck by a car, does the fact that he is baldheaded make any difference? No. Does the fact that he is a five-year-old? Yes. The latter is a pertinent fact, a relevant fact, an important fact, but not the former. Why? What makes one pertinent but not the other? Here we are at the heart of the need for study and thought and skill, for the measure of your success as a counselor will depend upon how accurate your predictions are. No client is going to think much of a lawyer who predicts him into jail or into the poorhouse.

Predictability has, as well, another aspect. At the very heart of certain problems lies the factor of predictability of legislative action. This frequently comes to the front in the planning aspects of the work of a lawyer specializing in advising the great nation-wide corporations (though it is by no means confined to them). For instance, a corporation may contemplate merger with another. The lawyer is aware of two very important developments. In the first place, the last similar merger made in this field was challenged in the courts, and, although a majority of the court approved, there was a strong opinion (called a "dissenting opinion") by a minority of the court. These judges felt that the limit of permissible merger had been passed. In addition, hard on the heels of this opinion, a bill had been introduced in the Congress to prohibit such mergers. The lawyer in this situation, then, must not only guess at what the court would do with his merger; he must also take into account his prediction as to what the legislature may do with this problem at its next session. It was Mr. Justice Holmes, of the United States Supreme Court, who once spoke of the bearing of what he called "the felt necessities of the time"

upon the formulation of the law. For our purposes just now it is well to remember that legislatures, as well as the courts, respond to these felt necessities, and often very quickly. In a sensitive field the lawyer not only watches the courts but also never lets the legislature's doings get too far out of the periphery of his vision.

We shall return now to the courts, and predictability. How will you know what to predict about the court's disposal of your client's case? Let's eliminate first of all the easy cases. They don't really need the counsel of a lawyer. If your town has an ordinance (that's a local rule, or law, good only in your community) saying that for parking in front of a fire hydrant you will be fined ten dollars, the lawyer's prediction of the (legal) consequences of the act of parking in front of the fire hydrant is simple: Whoever does so will pay ten dollars. The answer to that one is printed in black and white in the booklet of local laws.

But let's take an actual case. A father comes to you with a sad story. Near his home is a golf course. The neighborhood children are permitted, even invited and encouraged, to play on it in the winter. In that season the pond by the first tee becomes frozen, and the children skate there. The hill by the fifth green is good for coasting. All winter long it is a playground. But when spring comes and the golfers return, the children are supposed to stay away. Signs are posted, telling them to keep off. ("No trespassing. Trespassers will be prosecuted to the full extent of the law," says one.) Some times, in fact, the greens-keepers chase them off, but the children return again and again to their old playground, since the pond and the hill are as much fun in the summer as in the winter, but in a different way. Pretty soon the greens-keepers give up. The children swarm all over the course, and everyone knows it, and their presence is, well, not accepted exactly, but at least overlooked.

Then, one day, something happens that was just as certain to happen as the sun's coming up in the morning. One of the children is struck by a golf ball. A hard-hit golf ball in flight, as you may know, is almost as deadly as a bullet. The child struck was the child of your client, only seven years of age. His eye was put out. The hospital and doctor bills have been large, and your client is a poor man. Special care will have to be given the boy for a long time. His other eye, also, is in danger, since it will have to do the work of two. And, in addition to all else, he will be handicapped for the rest of his life. So, the boy has been badly hurt, and permanently, and the father has been hurt, too, mostly in his pocketbook, but in his heart as well, because parents usually suffer along with their children if they are hurt, or have to go to jail.

Your help, then, is sought by the father for himself and his son. He wants to know whether it will be possible for him to collect damages from either the golfer or the owner of the golf course where the "accident" (as it is usually called) occurred. What should the lawyer tell the father? To sue or to forget it? Certainly he should not be advised to sue if there is no possibility that he can win the lawsuit and re cover damages. Lawsuits are expensive. They take time, not only the father's time but the lawyer's as well, and that of many witnesses, such as people who saw the accident and the doctors who treated the boy. On the other hand it is equally serious to advise the father not to sue if neither the owner nor the golfer is in good financial position , for it would mean that neither the boy nor his father would ever be recompensed for a serious and expensive injury suffered by them. So far as the golfer himself is concerned, the problem is difficult enough. But we will assume that the golfer is penniless. If recovery is to mean anything, it must be against the owner of the land.

Where will the lawyer go for his answer? He will go only to himself. There is no one else to whom he may turn. Unlike the parking case, the answer is written in no book, found in no little pamphlet. The reason for this is that no set of laws, no matter of how many volumes, could ever give us a law for every conceivable accident that might happen.

The lawyer knows, of course, general propositions of law, but the trouble with them is that they are so broad that they suggest conflicting answers. For instance, he knows as a general rule that if one is hurt through the carelessness of another without himself having by his own carelessness contributed to the hurt, he may recover damages from the person who hurt him. This suggests to the lawyer that possibly the boy may recover. But there is another general rule that looks the other way: A landowner is not ordinarily liable to someone who trespasses upon his land and gets hurt while he is there. This suggests to him that the boy may lose, because it will surely be argued by the owner that the boy was a trespasser, since he not only was not invited onto the golf course in the summer, but, in fact, told to stay off. (Remember what the signs said?) And there are many, many other questions in this case, as you will see in your very first year in the law school, if you do decide to study law.

So, he must find the answers within his own knowledge. But where, actually, does he go to gain this knowledge? Obviously he can't carry around in his head all the knowledge required to make a reasonable prediction as to what a court will do in every single problem that comes to him for solution. So he goes to many places. The legislature may have passed a law on the subject, so he first looks at the laws passed by the legislature to see if there is a boy-hurt-on-golf-course law, and of course there isn't. The legislators could spend their whole lives just passing boy-hurt-somewhere laws and still there would be cases they hadn't even considered. He seems to be stymied. Is he?

The short answer is No. But while short answers are easy to make, it is much more difficult to explain the short answer, and such is the case here. The why leads to the use of precedents and analogies.

The use of precedents and analogies

First of all, what are precedents? These are similar cases, already ruled upon. For instance, it may just happen that the Supreme Court of your own State had before it for decision several years ago a golf-ball accident almost exactly like this one. If that is the situation, you need look no further. They ruled in that case, and thus there is a precedent in your own State. Under the doctrine of state decisions, when the same question arises again the courts will decide it the same way. In fact, it probably wouldn't even be appealed again to the Supreme Court, since it would be a waste of time and money.

Precedents, however, may come from other States as well as from our own. For instance, perhaps out in California that court considered the very same problem as the one you are grappling with. The California court, in explaining its decision, wrote an opinion. That opinion will be of the utmost value to the courts of your State if they have to decide the same question. True, it doesn't "bind," as the lawyers say, the court in our own State to hold the same way, since California decisions are binding only in California, but its reasoning may be so clear and persuasive that our court will feel it is correct and should be followed. These, then, are precedents. If the lawyer can find one he has gone a long way toward the solution of his problem. But even a precedent in an exactly similar case may not furnish the final answer. By the way, lawyers call such a case "a case on all fours" or a "horse case," or, when even irrelevancies match, a "spotted horse case." A lawyer was once helping to try a case for a plaintiff named Grinnell, and on a difficult point of law he cited to the judge an old case where the plaintiff's name was Grinnell! The judge said at last he had seen a "spotted horse case."

If you have a case on all fours, then, even such a case may not control the result in your case. Why, Because of the big question mark with respect to any precedent. The question is whether or not it would be followed by the courts of today. Let's take an example, a simple one. Many years ago people took just as much pride in the appearance (and speed) of their horses and buggies as they do of their automobiles today; maybe a little more, because a man's "rig" was a much more individual possession than his automobile is today. It wasn't mass produced in a factory, and it reflected more of his personal tastes and preferences. Moreover, the horses were living creatures, not just mechanisms under the hood. He himself had selected them, and trained them, and more often than not he was very solicitous of their care and condition.

This being the case, and human nature being what it is, it was not uncommon to find owners competing with each other in various ways, such as racing their rigs. Sometimes people got hurt in the process, though it was nothing like the automobile slaughter taking place on our highways today. A particular situation came before the court in the case we're talking about. Occasionally drivers approaching each other on intersecting roads would get stubborn about which one was going to give way to the other, which one was going to let the other pass through the intersection first. If such stubbornness persisted right into the intersection, both might get hurt. Let's suppose, then, that such a thing happened. Let's suppose that one man was driving on the main road and the other on a small side road that crossed the main road. They collided and each was hurt. The main-road driver claimed that he had the right of way because his was on the main road, and the other driver was careless ("negligent," as we have seen, is the legal term) in running into him. The lawyer for the side- road driver had to admit that his client had been careless; but, he said, the main-road driver couldn't recover anyway; why because he had been careless himself. When he saw, as he plainly did, that the side-road driver was going to dispute the right of way he unquestionably had, being on the main high way, he should have pulled around a little and let the other go through. Instead of that, he barged right on, straight ahead, and both people got hurt, as well as the horses and the buggies. In fact, it was a mess, horses kicking each other, harnesses all tangled up, buggies overturned, and each driver seriously injured. So, argued the side-road driver, each man was partially at fault and neither one can collect damages from the other. (Most of our States don't weigh the relative faults of two people, each injured in some mishap. If one has contributed, ever so slightly, to the accident, he can't recover anything, even though his contribution may have been as little as 5 per cent, and the other's 95 per cent. In other words, there may have been all kinds of negligence on the part of the man being sued, but if the one suing him was himself guilty of "contributory" negligence he can't recover anything, though the other's fault may have been the 95 per cent we just mentioned. Many people think this is not fair and are trying to have it changed.)

Now we come to the decision. The Supreme Court, faced with this problem, held that the main-road driver had in truth been guilty of negligence contributing to the accident. It said, with respect to this intersection problem, that when two vehicles are approaching each other in such a way that a collision is likely to result, it is the duty of the main-road driver (even though he does have the technical right of way) to keep his eye on the side-road driver as he approaches, and if it becomes apparent that the side-road man is going to challenge his right of way, he, the main-road driver, must take all measures possible to prevent an accident, (What the court was really saying was that he and property are too valuable to be jeopardized by a couple of grown men behaving like children. If they haven't the natural good sense to stay out of this kind of trouble, says the court, we will refuse to award them damages for their hurts, and maybe this will make people think twice about being stubborn as goats at intersections.)

So, that's the law established by the court. The driver having the right of way must nevertheless keep his eye on the side-road driver in order to be ready to avoid collision, if need be. Sounds like a pretty good rule to follow. In the law of the sea (called "admiralty" or "maritime" law) it has been the rule for centuries, although admiralty law does not prevent one ship owner from recovery if he has been only a little at fault.

Now let's shift the scene from the horse-and-buggy days to this present day. We still have main roads and side roads; we still have vehicles traveling on them; and we still have stubborn or foolhardy or reckless drivers. This case is presented: An automobile is being driven on what we now call an “expressway" or a "throughway" or an "arterial highway."

This highway is guarded by "stop" signs. No one is supposed to venture onto it without coming to a full stop, permitting traffic on the expressway to pass, then entering with a great deal of caution. But in the case before us the driver coming in from the side road did not do these things. He disregarded the stop sign, plunged right onto the main road, and came into collision with a fast-moving car on the expressway. The expressway driver sues for damages for his injuries. The side- road driver says he should not be able to collect damages, for he was himself guilty of "contributory" negligence. Why was he? Because the expressway driver admitted that he had not kept watching the side-road driver as he approached. Why hadn't he? Because, he said, I didn't have enough eyes. This highway, he testified, was an expressway. It carried four lanes of traffic in each direction. These were the conditions on the expressway at the time: There was a big haul-a-way truck crowding him from the rear. Immediately ahead of him was a cautious old lady traveling at about twenty miles per hour. Cutting in on him from his left was a crazy driver. Yes, said the main-road driver, I will freely admit I didn't keep watching the side-road driver. It was all I could do to keep watching what was going on around me. If I had watched the side roads too, I would certainly have got into trouble with these drivers around me on the expressway.

What should the Supreme Court do with this case? If it follows the precedent of the older case, the expressway driver certainly will lose. Remember the horse-and-buggy intersection case? It required the main-road driver to keep watching the side-road driver. (Incidentally, the fact that the horse-and- buggy case was, in truth, an old case does not, in and of itself, mean that it should not be followed. We follow many cases much older. In fact, some of our precedents in property law are hundreds of years old.) Furthermore, it is a very serious matter for a court not to follow the law it has once announced because people plan their lives, and lawyers advise them, upon what the Supreme Court has said the law is in that situation. If the court now fails to follow the old case, it is something like changing the rules in the middle of the game, isn't it? Actually, many lawyers feel so. And yet, isn't that just the trouble, thinking of a lawsuit as a game? Actually, the purpose of the courts is to do just one thing: dispense justice between the parties before it. And if we are going to do justice, would you who have driven on the great highways of today, carrying enormous numbers of cars all going at high speeds, actually require one of these drivers to keep watching a side-road car when there was immediate danger all around him? After all, he has only one pair of eyes. Well, I don't think you would; and in the actual case a majority of the court didn't.

This is beginning to sound almost as though you were already involved in the practice of the law, rather than trying to find out what the practice is like. Why are we getting so technical? For this reason: To correct a common misapprehension that you may share with many people; namely, that lawyers merely apply "rules" that they memorize somewhere.

As you can see, they don't (except with respect to the paper work and the ways to get into court, and such things, called matters of pleading and procedure). Not only will this true picture correct some of our misapprehensions; it will also give us a clue to what we should be studying before we even get into law school. That's important, for the three years you spend in law school are not enough to teach you everything you should know in order to practice law.

Analogies and their use

So, if there is no law passed by the legislature giving the answer to your problem you look for a similar case (a precedent) already decided, either in your own State or some other. Even if you are lucky enough to find one, the question as to whether the court will follow it always arises. It may be so out of step with modern conditions that it would get many people in trouble if they tried to follow it, and so the court may "overrule" it; that is, it would rephrase the law more accurately, in accordance with the needs of today rather than with those of yesterday.

But suppose there is no precedent anywhere. What then? Then you will have to use analogies. What is an analogy? An analogy is a case something like yours, but not exactly. For instance, a zebra is something like a horse, or, as the lawyers would say, is "analogous" to it. It looks like a horse, is built the same way, walks and runs on four legs, and so forth. But a fish is not, and I don't even have to tell you why. We shall look at an example of an analogous legal case in just a minute, but first let's get something clearly in mind: An analogy is not a simple tool to use. Why not? Be cause, after all, it is a different case. It always involves different people, a different location, and different facts. But the really skilled lawyer will be able, in a truly analogous case, to point out how the legal principles in the one case are the same as those in the other, just as a skilled chemist could point out that a piece of coal and a diamond are fundamentally of the same composition and are made of the same chemical despite their differences in appearance.

Again, let's take an example. We shall go back to our golf-ball case and assume that we didn't find any other golf- ball cases anywhere. But we did find something that sounded a little bit like it, or, as the lawyers would say, is "some what analogous." We found a case involving these facts: A school was near the railroad tracks. The school bus, instead of taking the children to the door of the school itself, always let them off at a certain garage, and at this place the children split into two groups, some walking to one school and some to another. One of the schools was near the railroad depot, and the children attending this school, instead of using the side walks, used to take a short cut. They cut right across the tracks. They had done so for a long time. There was, in fact, a well-worn path there. The station agent knew it and even the train engineers and conductors knew of it. One sad day, however, a group of these children misjudged the speed of an oncoming train and got panicky. One little boy stumbled and fell right on the tracks and was run over. Now, this case, as you can see, is in some respects similar to our golf-ball case. In each case a boy was involved, a young person not having the mature judgment of an adult. In each case the boy was on property he (or his family) didn't own. In each case, more over, the other people knew that he was there and that he made a practice of being there. In each case the boy got hurt, while there, by the normal day-to-day activity the owner of the property conducted on the premises he owned for that very purpose. These, then, are the similarities. But what are the differences? A lot of them occur to us at once. In the first place, a railroad train can only hurt someone who gets on the tracks. The tracks themselves are a clearly visible sign of danger, even to a very young person, and even one as young as this boy knew that trains ran over them all the time. More over, a person on the tracks can move just a little bit and be off of them and out of danger in no time? But the train can't move an inch. Moreover, if a train had to jam on its brakes every time a person or a horse or a car started across its tracks could it ever meet the railroad schedule as published in the timetable? And, after all, this did happen on the railroad right of way, land it had bought for this purpose, had fenced in, and, where fences were not practicable (as, for instance, around a depot) had posted signs saying "Keep Off." In plainer terms the boy was a trespasser.

Here, then, is the legal problem: Are the differences in the railroad case so fundamental that the result in the one should have no influence with respect to the result in the other?

This is an extremely difficult question. This is the point at which the good lawyers win their cases and the poor law years, the rule memorizers, lose theirs. Because in order to decide whether two cases are fundamentally different, or fundamentally alike, we must be able to strip off the (legal) nonessentials and expose the basic structure of the controversy in each case.
Let's compare, for a moment, our railroad case and our golf-ball case, then, as to essentials and nonessentials. When we read the written opinions we find that one boy's name was Sam and the other's Bill. Those are nonessentials, in this case. Sam lived with his father and mother, Bill with an aunt. Again, nonessentials. Sam was reared as a Roman Catholic, The Unending Search Bill as an Episcopalian, More nonessentials. In each case the boy was said to be a trespasser. Now we are getting to something important, because in each case the defendant (this is the person being sued, the one "defending" the lawsuit) argues that he is not liable in damages for the injury for that very reason! In each case, also, there is the element of the "permitted" trespass. (This sounds like a contradiction in terms, to "permit" an unauthorized entry upon one's land, but it happens when one tolerates a trespass without expressly permitting it.)

Legally there is a common axle upon which each of these cases is turning, namely, the rights of a trespasser. (Just as does a vehicle, a case may have more than one axle, but right now we're interested only in this one.) There is a real likeness here between the two cases, a similarity in legal principle. The railroad case is in truth an analogous case. We shall use it. But as we read on in the case we note with dismay (since we are representing the boy) that in the railroad case the boy was denied recovery on the simple ground that he was a trespasser. So, we have a case analogous in principle, but an additional question arises: Should it control the result in our case? This gets us back to our discussion of the value of precedents, for exactly the same point is involved here: Does the reasoning of the case fit in with modern conditions?

We said in the expressway case that the horse-and-buggy precedent was not applicable because the opinion was rendered in the light of social conditions in a far different era. Can the same thing be true of our analogous case, the rail-road-trespasser case, that its ruling likewise reflects the circumstances of some other era in our history?

Our research starts. We study the early trespasser cases. We find that the "rule" (that a trespasser cannot recover damages because he is a trespasser) comes down to us from medieval times. There were, at that time, certain reasons for it. These, the lawyer is able to discover, for they are all set out in those early opinions of the English courts. There was the problem of "poaching," for one thing. There was a lot of the notion of the sanctity of land, for another, and that was all mixed up with theories of feudal tenure. But-and this is important-do those reasons apply to the society of today? If they do not, should the courts continue to enforce the old rule about the lack of rights in a trespasser? Isn't enforcing a rule when the reason for it is gone something like hanging your hat on a hook when the hook is gone? You can't in real life. Should you be able to in the law?

We don't have to answer those questions now. Our present point is a different one. We are looking at analogies and their use. For our present purposes the fascinating thing is that to give an opinion on this legal problem of the trespassing boy, the lawyer is not so much interested in rules of law as he is in the social conditions that gave birth to those rules. Once this point is clearly seen, a fog of misunderstanding rolls away and we may more clearly see what the lawyer really does in ascertaining what "the law" is and the extent of learning necessary in order that he may reach a reasonably accurate conclusion. In this particular case, for instance, if the lawyer for the injured boy is going to convince the court that the ancient trespass rules (which partially accounted for the decision in the railroad case) should not be applied in the twentieth century in his golf-ball case, he will have to do so on the basis of a painstaking demonstration that the social conditions in medieval England, when this rule of law was first formulated, were so vastly different from the social conditions today that the ancient rule now has no validity and should not be followed.

Even more revealing of the changes in the law wrought by changes in society itself are the laws relating to the rights of workmen in factories. There was a time when, if he got hurt, he was strictly on his own. He couldn't sue his employer because the employer wasn't even there; he was in the front office and, what's more, the courts were apt to say that the workman "assumed the risk" of getting hurt when he reported for work. Not only that, but oftentimes the injury was the result of the carelessness of some fellow servant, or possibly the workman himself contributed in some degree to his own hurt. In none of these cases could the injured work man recover. Yet the injuries mounted by the thousands as the age of machinery expanded and more and more men went to work in factories. You could almost reduce it to a formula: For every skyscraper built there would be so many lives lost per floor; for every drill press operated, so many hands or fingers chopped off per year. When people are working in hazardous situations or with dangerous machinery, there are bound to be accidents, lots of them. Even today, much as conditions have improved, we still have alarming losses. For instance, after more than three years of war in Korea over 25,000 men had been killed and over 8,000 injured. But in the same period of time, over 48,000 civilians had been killed on the job.

As a result of such appalling numbers of injuries, laws have been passed saying, in substance, that if a workman is hurt on the job he gets a certain specified compensation. These are called "workmen's compensation laws." The theory is that the workman gives up his damage claim against his employer and in return, gets a compensation allowance for his hurt, regardless of whose negligence it was, if anybody's, that caused the injury.

Now, suppose your client comes to you, as a lawyer, and tells you that he was hurt in an accident in a factory. He says that part of his job was to lift boxes of wooden forms from the floor to a platform. On the day of the accident, however, through someone's mistake a box of heavy castings had slipped into the line of boxes of wooden forms. He had turned and lifted, as he always did, but the unexpected weight of the box of castings had thrown him off balance and he had hurt his spine badly. He had been in a cast in the hospital for several weeks. Even now he could hardly walk.

But why in the world is he coming to you, a lawyer? The workmen's compensation acts clearly say that workmen who have accidents while doing their work shall receive compensation. But the company had refused to pay. They said the workman had not suffered an accident at all, that he was merely doing his ordinary work in his ordinary way when he got hurt, and that such an injury was no "accident." They said you can't have an "accident" unless something completely unexpected, outside what you were deliberately doing, happens to you, such as a lighting fixture falling from the ceiling and hitting you while at work.

Now, as a matter of dictionary English there is a good deal to be said for the company's position. But are the words in the statute to be construed with a dictionary at one's elbow, as though they were merely obscure words in a poem? Or are they to be construed in the light of the evil the law was attempting to cure? Well, there's no argument about that one. When a statute is passed by the legislature its words must be construed in the context of the problem facing the legislature. Here's a good example: the term "fire control." It has two well-defined meanings. The control of the gunfire of ships or airplanes is an intricate matter, calling for the use of computers and all sorts of electronic help. The whole science is called that of "fire control." On the other hand, the fire departments of some of our great cities are faced with the extremely difficult problem of preventing, or controlling, the spread of fire in congested areas. This, also, is called "fire The Unending Search control." But you would not give this meaning to the words if they were used in a law pertaining to the shooting of guns by airplanes or ships.

Back, then, to the word "accident" as it applies to the injured client before you. In order to convince the court that the word does not simply mean something dropping from the ceiling, for instance, but really means simply the unexpected result of doing ordinary work, you will have to know a great deal of the origins of workmen's compensation laws. This, in turn, takes you back to the social conditions at the time of the Industrial Revolution, the migration of men in great numbers to the factories, the astonishingly high injury rate, and the social consequences of dumping these mutilated men, without recompense, on society itself for as long as they were unable to work. Is this law? We needn't define what it is. Whatever we call it, you must know it in order to understand your client's problem and in order to see that he gets justice.

You will observe that we have traveled far, indeed, from the idea that a lawyer finds out what the law is merely by looking it up in a book of rules somewhere. We are required, actually, to plunge into a study of life in medieval England in order to find out whether a boy hurt on a golf course in a modern city in this twentieth century may recover damages for his hurt. The older rulings and decisions in the law are being reexamined constantly, and constantly revised. Why? Because decisions on legal problems rendered at a time of differing social conditions (remember the horse-and-buggy collision case?) may do vast injustices to people today because of changed conditions. We have examined this golf-ball case in considerable detail for many reasons, but one, in particular, we shall shortly consider carefully: What should you study in order to become a good lawyer? At this point it would seem that knowledge of the social conditions in medieval England at the time our law was taking shape would be a good thing to have (and it is).

But there is something else you may have by this time observed. It's a difficult thought to phrase in completely accurate terms, but the central core of the idea is this: The lawyer in this golf-ball case was engaged, fundamentally, in a process of adjustment, the adjustment of the individual's (the boy's) rights to the rights of society itself (those others with whom the boy comes into daily contact). This is merely one example, and a narrow one at that. Most of a lawyer's problems are problems in adjustment. Let's look at another, for just a moment, so you won't get a one-sided picture. A great corporation may come to you with a problem of taxation. This corporation does business in many States, It has steel mills in some, it has mines in another, it owns a sizable railroad to transport some of its materials, and it even operates a fleet of ships for its water-borne freight. One of the States in which it does business has levied on the corporation a tax figured on a percentage. The percentage may be the value of property in the taxing State as compared with the value of the property everywhere. The corporation says to you that while it is true that the mine it owns in your State is immensely valuable, it wouldn't be worth anything without the trains to transport the ore, the ships to carry the finished products, and the sales organization to sell them, and they are all out side the State. It says that this mine-valuation theory is completely unfair to it. Is it? At this point you will get into the fascinating field of interstate commerce and of the taxation of the instrumentalities of interstate commerce. You will learn why corporations are set up in a certain way, why their products are handled in a certain way, and how the price structure of the industry is constructed. For instance, why does the corporation own ships of its own instead of buying space on someone else's ship, as you or I would do? Maybe The Unending Search it would actually be cheaper to charter vessels. Just why is it done this way?

Again we raise questions we shall not answer. The thing for us to be aware of now is that, once more, we face a problem of adjustment of rights and duties, and again it is a very difficult one. Here it is the adjustment of the rights of the big multi-State corporation to the rights of the people in the various States in which it does business. The corporation brings business to the State, it is true; it gives employment to many of our citizens; and its products, well made and serviceable, are useful to us. But at the same time the corporation brings problems to our communities as well. Their plants and properties enjoy the protection of our policemen and firemen, all of whom must be paid and supplied with very expensive equipment. The corporation trucks travel on our highways, some of which must be especially strengthened to stand up under this kind of traffic. We could go on and on as we compare what the corporation gives with what it gets.

It is clear that the corporation should be required to pay by way of taxes its fair share of the costs of government. But what is its fair share? Once again we have a problem in adjustment.

The lawyer is both counsel and advocate. Now we begin to see something of the nature of his problems as he works toward the solution of his client's difficulties. But in addition to the problems we have described, he has another set of problems, entirely apart from those we have considered. We shall consider them for a moment.

The procedure of the law

There is another kind of knowledge needed by the practitioner of law. Here we get into what might be called the "rules of the game." (The expression should not be taken literally. A lawsuit is in no sense a game. It is a very serious matter in which people are seeking justice.) Take the game of tennis as an example. In order to be a good player you must know a lot about what scientists would call the interaction between ball and racquet. In a little plainer language, you must know how to hit a ball, at different angles, and with different forces, for different purposes. You must know how to handle or turn your racquet in order to accomplish those purposes. Such things go to make up the science of the game, its substance, so to speak.

But you could know (and do) all these things to perfection and still not win a single game against even a duffer, as something else is involved, as well. You must serve while standing behind a certain line. Your ball must be placed within a certain area, within certain squares on the ground. These are the ground rules, the procedural rules, if we may apply a legal term to the game of tennis. Without knowing them you are sunk. What good would all those wonderful shots do you if you placed them all in the wrong court?

The actual practice of law is something like this. Law has its ground rules, too. A certain kind of lawsuit must be brought in a certain kind of court. You may not bring a divorce action before a court having authority only to handle criminal cases. You may not start a lawsuit by filing a piece of paper (sometimes descriptively called a "bill of complaint") that complains only of what the other fellow did without showing also how your client was hurt by the thing the other did. Indeed, you might be in the proper court, and have everything stated correctly in your bill of complaint, and still never be able to get your case heard by the judge because you didn't "serve" the defendant (that's the man being sued) with an authentic copy of the bill of complaint. It's not enough to give his wife a copy upon the theory that she will run straight to him with it. She may, or she may run straight to the garbage pail with it, upon the theory that no one is going to make trouble for her husband if she is able to stop it.

These rules (and many others like them) are what you and I have called the ground rules. They are technical. They are matters of "procedure," to use the lawyer's term. You must know them before you can proceed, before you can get to first base, so to speak. They are important. In fact they are extremely important since they bear upon one's right to be tried only upon certain charges, in a certain way, and before certain tribunals. These requirements are all lumped together in what is called the "right to a fair trial," and this right is one of the cornerstones of our freedom.

So, we have problems of procedure and we have problems of substance (and sometimes, as you will learn, they overlap). The matters of substance are those relating to the law itself (that is, can a trespassing boy collect damages for his hurt?), while matters of procedure are those relating to the mechanics of getting into court.

We have seen, up to this point, a number of things. We have seen that a lawyer counsels people as to their rights and that he advocates their position before courts and tribunals. In order that he may counsel wisely and advocate effectively, he must know what the substance of the applicable law is and the procedure for using it. He thus walks on two legs, called counseling and advocacy, and he fights his legal battles with two arms, one called "substance" and the other called "procedure."

Now the next questions are these: How and where does he learn these things? The quick answer is in the law schools. But this answer is too quick. Much of it he must get elsewhere. The normal law-school course is only three years (not including the summers). This is too short a time to cover all he must learn. Again, then, we ask: Where and how does one learn these things?