| legal
reasoning: introduction |
A Lawyer's Problem
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The
Case
Lawyers solve problems. But
how do lawyers solve problems? In part by using their native ingenuity, their
social skills, their common sense -- and in part by using the tools of legal reasoning.
What kinds of tools are these? The purpose of this Introductory Problem is to
look at the kinds of tools lawyers use. In the rest of these materials,
you will, we hope, learn how to use all of them.
The trial is almost over.
There were only three witnesses: the plaintiff, who bought the house; the defendant,
who sold the house; and the contractor, who stopped the basement from flooding.
Their testimony did not diverge in any substantial respect, and you expect that
the judge(1) will find all
three witnesses to be credible. It is time to make your argument that your client,
the defendant, does not owe the plaintiff the $20,000 he claims, nor indeed
anything.
Your notes as to the gist
of what the witnesses said, are as follows:
The
Plaintiff Testified
- He bought the house from the
defendant for $200,000.
- Bought it directly without
a broker on either side.
- The basement is usually dry,
but floods after heavy rains.
- He did not know the basement
flooded when he purchased the house.
- He was about to find a contractor
to put a family room into the basement three months after purchase, when it
flooded.
- Cost $20,000 to put in drains,
sump pump to prevent flooded basement.
- Seller never told him basement
flooded.
- When he asked seller about
condition of house, she said "it's
a fine house."
- Seller provided purchase and
sale form.
Plaintiff
on Cross-Examination
- Planned from time of purchase
to put a family room in the basement.
- Never asked seller direct question
about condition of basement.
- Read, although quickly, purchase
and sale form.
- Never had the house inspected
before going through with the deal.
The
Contractor (Plaintiff's Witness) Testified
- It was apparent to him when
he saw the basement that it flooded occasionally, but in his opinion it would
take an expert to see it.
- Most houses in neighborhood
do not flood.
- $20,000 to prevent flooding
was reasonable cost to complete the job.
Contractor
on Cross-Examination
- Occasional flooding of basement
does not threaten house structurally.
- Not the only house in the neighborhood
that floods.
- Believes that it is common
but not universal to have houses inspected before final purchase; indeed he
has done some of it himself.
Defendant
Testified
- House was already old when
she bought it.
- House has flooded periodically
since she owned it.
- Her only use of basement is
for utility purposes - wetness has not interfered with her use.
- She did not show buyer around
house: let him walk around for himself.
- Even in dry weather, there
are some water lines on walls of basement left from prior flooding.
- She was available to answer
questions.
- He asked her what condition
the house was in: she answered "it's
a fine house."
- Only specific question he asked
was: "When was the roof last shingled?"
- She acquired the purchase and
sale form from stationery store; both parties signed it.
- Form provided that buyer's
offer was "subject to satisfactory inspection."
- Form made no representation
as to the condition of the house.
Defendant
on Cross-Examination
- Denied purposefully not having
gone around the house with the buyer in order to avoid questions.
Questions
to Consider
This, you realize, is not going
to be an easy argument on either side, even though the raw facts are clear. The
moral intuitions of some people in the society would lead them to favor the plaintiff;
of others, the defendant. Indeed, you, yourself, can see that there are two legitimate
sides here. But the parties were unable to come to a settlement, and now you have
to give voice to your client's side, leaving it to the judge to judge. There are
limits to what you will do, of course; at the same time, unless you do something
to put the argument in order, your client's position will remain mute.
- You are representing
the defendant. As you start thinking about what has happened so far, you realize
that the "story" of what happened between these parties can be told
in different ways - and, you suspect, the way in which the judge understands
it will have a lot to do with how she will rule. Considering the plaintiff,
you realize that a central part of this situation is that he did not do much
to protect himself. His attorney, you suspect, will try to portray him as
an honest, trusting soul, deserving of the law's protection.
- What will your
picture of his character be? Should you make him seem to be a fool? If so,
how would you put the evidence together to make that point?
- And what about
your own client? She might be simply an honest citizen herself, bumbling
along like the plaintiff. Or you might portray her as sharp-witted: someone
who knew (or at least sensed) what her rights were, and was careful to stay
on the lawful side of the line.
- What is the "morality
play" you want to present? Is this a saga of two ordinary people who are
equally entitled to the law's solicitude? Or is it a tale of a smart person
not liable for the frailties of the fool as long as she stays within the
law?
- Looking for the legal
boundaries, you have found that in many situations, including some having
to do with the sale of used houses, the decisions in your jurisdiction no
longer, as they once did, make a seller's liability for representations turn
on whether the seller intended to defraud the buyer.
The seller is responsible
(in the words of a recent case) for "affirmative misstatements of fact, even
if innocently made." You believe that the plaintiff's attorney will try to make
something of the seller's having told the buyer "it's a fine house." You want,
of course, to argue that nothing should be made of it.
- Should you argue
that the seller made no misstatement? That she made no statement of fact?
How will you bring the facts and the Court's doctrine together?
- You also expect the
plaintiff's attorney to argue that the defendant, even if she made no "misstatement
of fact," should be held to warrant that the house is free from defects, or
at least be held to have to disclose before the sale any defects of which
she was aware. You have found no cases decided by the Supreme Court of your
jurisdiction which resolve these claims as regards the sale of an old house.
The three arguably relevant, recent cases you have found are:
- A case in which the
Court held that the builder-seller of a new home does by law warrant to
the buyer of it that the house is free of structural defects, so that the
buyer was entitled to damages when part of the roof fell in three years
after purchase;
- A case in which the
Court reaffirmed a long line of decisions holding that physicians do not
by law warrant the success of their services, but are instead to be held
only to a standard of reasonable care; and
- A case in which the
Court held that the seller of a used house does not by law warrant that
the house is termite free, but also held the particular seller liable, because
she had seen termites in the basement, decided not to call an inspector
or exterminator since she expected to sell the house, and did not tell the
prospective buyer.
- What are you going
to do about these cases? Can they be made to work in your favor - or can
you distinguish them?
- Inevitably, in responding
to the arguments you expect the other side to make, you will have to be dealing
with the case both in its particularity - what did these parties say to each
other when they struck a deal - and in its generality - what duties do typical
buyers and sellers of property owe to each other. But the size of the canvas
on which you will paint is also, to some extent, within your control.
- When will your
story begin? When the plaintiff turned up at the defendant's house to look
at it? Earlier, when the plaintiff could have, but didn't, acquire the knowledge
needed to ask the right questions of the defendant? When the defendant,
even earlier, bought and used the house without considering a wet basement
to be a substantial defect in an old home?
- And when will your
story end? When the parties signed the purchase and sale agreement? When
the plaintiff failed to take advantage of his right to have the house inspected?
When the plaintiff was about to put a family room in the basement? Similarly,
are you going to speak of what the parties did know? Of what they could
have known? Of what reasonable home buyers in general know? How, in short,
are you going to frame your argument?
- Finally, it is true
you are arguing to a trial judge, who is bound to follow precedent; but her
view of what the law ought to be may well influence her view of what the law
is, if it is at all doubtful.
- Is it fairer and
better to impose a duty of disclosure on the seller, or a duty of inspection
on the buyer? Is it fairer and better to make speakers liable for the ambiguities
of half-statements, or should the burden be on listeners to ask for clarification
when they need it? Are the controlling considerations matters of individual
freedom? Of social convenience and utility? Of judicial economy and ease
of judicial administration? Of the role of the courts compared to the role
of the legislature? Of distributive justice? In short, what part in your
argument will be filled by considerations of "policy" -- of the purposes,
values, and ideals to be served by the law?
Three things are apparent from
this list. First, lawyers do not simply make arguments, they build arguments:
fashioning a legal argument is a remarkably creative task. Second, several different
mental skills are involved in this creative process. Third, the way in which each
aspect of the argument is constructed has implications for the other aspects.We
have tried to tease these various skills apart and to present materials that will
help you master them. When you are through, you should be both more adept at creating
legal arguments and more proficient at understanding the structure of arguments
others have built.
Identifying
the Issues
The five Lectures following
this Introductory Problem are designed to acquaint you with the dimensions of
legal reasoning and argument identified by the five numbered paragraphs you have
just read.
Why not try formulating a tentative analysis
of the Introductory Problem: A Lawyer's Problem right now? Then, after
you work with each of these lectures, you can come back to this Introductory Problem
to test your newly developed abilities.