Logic and the law

Rationality prevailed in the Washington Supreme Court today.  The court issued a decision in my appeal of the Court of Appeals’ illogical and nonsensical decision to deny my client any recovery in a multi-million dollar case without reaching the merits of the case, instead basing its decision on a typo in the plaintiff’s name that the parties had ignored for twelve years.  The Supreme Court’s decision on my Petition for Review was all I could have hoped for. 

The PFR is usually just a means to persuade the Supreme Court to accept review (unlike the Court of Appeals, review by the Supreme Court is discretionary), and if one is successful in obtaining review, there is additional briefing and oral argument on the issue raised in the PFR.  Today, in one fairly terse and concise opinion, the Supreme Court not only accepted review as I requested, it also reversed the Court of Appeals’ decision to avoid review based  on a typo, rather than reaching the merits.  Based on my understanding of the Supreme Court, to summarily reverse (in a “per curiam” decision) without asking for additional briefing and hearing oral argument, indicates that the Supreme Court considered the Court of Appeals’ decision clearly erroneous.  The Supreme Court adopted my arguments that (1) the defendant (WaferTech) waived its objection to the plaintiff’s capacity (based on the typo in the name) and (2) “law of the case” would not prevent the Supreme Court from reversing the Court of Appeals’ error in basing its decision on the waived objection.

The next step is to argue the merits of a summary judgment entered by the trial court in 2013, which I timely appealed but the Court of Appeals never reviewed, instead getting sidetracked by the typo and “lack of capacity” nonsense raised by WaferTech in early 2014.

As I was preparing my PFR, I consulted with two appellate law experts, both much more highly acclaimed, accomplished, and respected in the field than I am.  Neither of them expressed much confidence in my chances of even obtaining review, much less prevailing.  I’m glad I didn’t let them discourage me.  I want to give thanks and share credit with my friend, Prof. Bradley S. Shannon, Florida Coastal School of Law, with whom I consulted on the briefing and framing of arguments.

“A foolish consistency is the hobgoblin of little minds.”  With that quote, Emerson has done much damage, providing refuge to people who seek to feel good about themselves while acting irrationally.  I’ll explain.

It is human to be susceptible to wishful thinking, with the more technical terms “motivated reasoning” and “confirmation bias.”  Humans are more likely to believe what they want to believe.  Facts and information that contradict prior held beliefs are dismissed, or we work hard to develop theories, however complicated or unlikely, to explain them away.  Facts and information that support our beliefs are accepted without scrutiny.

When I hear or read about smart, educated people (or even those not so smart or educated) spout theories or assert ideas that seem ludicrous, I have come to despair that “people will believe anything they want to believe.”  Of course, sometimes that makes me sound like the conspiracy theorist I am critiquing.  I have to examine what makes me think I’m not falling victim to motivated reasoning or confirmation bias.

Wishful thinking is not sufficient to explain why people will believe anything they want to believe.  It must be coupled with lack of consequences for being wrong.  Sometimes the consequences are concrete and immediate.  You want to believe you are so smart you don’t need to study for the next exam; your failing grade says otherwise.  The doctor wants to believe the patient doesn’t need immediate treatment, which would disrupt plans to take the rest of the day off to fish or golf; the patient’s death or hospitalization will persuade the doctor to examine the symptoms more closely.

That’s fine when there are concrete consequences; what about when there aren’t.  I read an analysis of why voters support Trump even though have severe doubts about his honesty or ability to do what he says.  The answer was lack of consequences.  There is no harm to most individual voters to being wrong.  They feel free to say and even believe Trump will make America great again, despite doubts, supporting the man enthusiastically. 

How I avoid being misled by confirmation bias and motivated reasoning is a commitment to truth and reality, which requires consistency.  I can’t believe “A” today, as it makes me feel good or provides some advantage, and believe “not A” tomorrow just because it feels good or provides some advantage.  I vigorously test current beliefs against prior knowledge and beliefs to determine if there is an inconsistency, and if so, where my error is, or is there actually not an error.  This takes work and energy, but it’s worth it to me to be a rational person.  If you want to be a rational person, you have to make that commitment as well.

Emerson provides an out for those who don’t want to do that work.  “Don’t be consistent, don’t subject your beliefs today, if they make you feel good, to any rigorous comparison to your other contradictory beliefs,” he implies.  He inserted the qualifier “foolish,” but if “foolish” has any teeth, “consistency” has no meaning.  He is giving license to inconsistency, and in so doing, irrationality. 

If someone says “literally,” they mean “figuratively.”

If someone says “I know for a fact that ...,” they are about to provide hearsay and/or speculation.

If someone says, “I guarantee that ...,” the event that follows is something over which they have no control or even influence.

If someone says, “The fact is ...,” what follows is almost always incorrect or at a minimum highly disputed, if it is a fact at all rather than an opinion.

Of course, if someone (ok, the PEOTUS) says “Believe me, ...” there is a 0% chance what follows is true.

A friend of mine was saying Hillary “should” have won the election.  On talk radio, the host said the Seahawks “should” have beaten the Cardinals.  What did they mean by this?  Did they mean the same thing?  I don’t know.

To say Hillary “should” have won, does that mean she was the better candidate and more voters “should” have voted for her because of that?  Is there blame on the voters for failing to do that, or is it on the candidate for failing to run a better campaign to persuade or inspire enough voters to vote for her?  Is the news media to blame for how they covered her campaign and her opponents’ campaign?  Who knows?

When it comes to the Seahawks, did the players mess up a sure win?  Was it the coaches?  Did the refs blow it for them?  Who knows?

In each instance, the speaker is implying some rule and argument that leads to the conclusion, “X should have happened.”  In doing so, the speaker is seeking to foreclose any debate.  The listener can agree, but by only agreeing with the conclusion, the “agreement” is illusory. 

If the listener disagrees, the possible bases for disagreement are endless, so there is no way to even start a fruitful conversation.  At best, the listener, if they care and respect the speaker, can ask, “Why do you say that?” or “What do you mean?”  While this may lead to further discussion, why did we have to go through the prior two steps, putting the onus on the listener to move the conversation forward.  If the speaker avoided the “should,” and instead couched the assertion in language such as, “If Hillary/the Seahawks had done (or not done) X, she/they would have won”  Now the listener knows what the conversation is about, and has a clear opening for how to respond in a way the speaker will welcome (or at least understand, as it will relate to the speaker’s assertion).

This also arises in the law, involving people trained and supposedly expert in “argument.”  I often read briefs by seemingly competent lawyers who will assert “should” without stating the rule or argument.  I always wonder what they think the court does when the court reads that.  Do they think that persuades the court?  Do they think I read that and go, “They’re right, I’ll just concede.”  More likely, a court, if approaching the brief in an open but skeptical manner, ready to be persuaded but waiting to be so, will stop and begin formulating, even subconsciously, arguments or reasons why it “shouldn’t,” creating an adversary relationship.

This is where if I was not self-aware, I would close with “So you shouldn’t use ‘should’ in conversation or arguments.”  I am so I won’t.  If you want to have deeper, more enlightening conversations, where you may learn something from the other person, avoid using “should.”  Instead, state your thinking, exposing it to your listener, so he or she can respond to your thinking.

It’s bad enough that you now can’t have a jury trial without spending thousands of dollars on jury consultants to help select the jury (whatever happened to an impartial jury of your peers?).  The esteemed Mark Geragos has stated on his “Reasonable Doubt” podcast that most cases are won in the jury selection.  Not discovery, not motions in limine, not the facts or law, jury selection.  Juries get instructions on the law, but judges and lawyers never really expected them to follow the instructions.  They were more of a guide.

Judges were supposedly different.  They are learned in the law, obligated to apply it.  So why would it matter who the judge was, as they were applying the same law.  Now we know.

The Wall Street Journal informs us you can now spend thousands of dollars to determine how your judge will rule, before the judge has even read a brief or heard any evidence.

http://webreprints.djreprints.com/4010850750389.html?mkt_tok=eyJpIjoiT0RnellUZzVabVUzTlRsbSIsInQiOiJETnZmcWZHaWhnUWtlTDdzTnVmUVNqaW9KdTQ2OTVWSDhWaktBRGV3ZE5TQlhDb0sxaGNzMGlLWHhPVnNDUjlQc21oYnRwbk04cW9UK2Y0dmF0TStxdUcwOEw1dmpLeHNiaHBGaEd4eW5BTFFqVXhDTHdidUlkZnJCb1pmUU9LQSJ9

I often hear that someone who likes to “argue” should go to law school, and I usually disagree, often silently.  I always think of the Monty Python sketch where a man pays for an argument and just gets someone who disagrees with everything he says.  That’s not an argument (”yes it is”).

A true argument implies reasoning.  When I went back to college a few years back to take college-level math (a prerequisite to becoming a high school math teacher, which I did not complete), one of the joys was being immersed in logical argument.  Nothing is true in math unless it can be proven using inductive or deductive logic. 

Life is not math, nor is law math, but logical argument enriches both.  It is objective, so it puts everyone, regardless of experience, knowledge, status, wealth, sex, whatever, on equal footing.  It is the ultimate “safe space.”

Getting back to the budding lawyer, if that person merely likes to disagree or try to get their way, please steer them away from the law.  We have enough disagreeable lawyers.  Lawyers have a higher calling, which is to be a guardian of the law, with justice “based upon the rule of law ... and the capacity through reason for enlightened self-government.”  Preamble to the Rules of Professional Conduct.  Lawyers are obligated to use logical reasoning in to appeal to judges, in order that justice is obtained.

The building block of logical argument is the basic syllogism:  1.  Major Premise; 2.  Minor Premise; 3.  Conclusion.  The major premise is the abstract rule or principle upon which the argument rests.  The minor premise contains factual assertions as to how the present situation fits within the rule or principle.  The conclusion is then inevitable and almost self-explanatory.  Without the major premise, there is no argument.

Law students are fairly self-selecting group, and come to law school with at least some affinity with and preference for logical argument, which is initially reinforced.  By the second and third year, it is not ignored or forgotten, but it is not stressed.

Once they get in practice, it gets lost, replaced by other concerns, mainly “What does my (client, partner, judge) want me to focus on to win the case.”  Part of this is due to the three-pronged approach to persuasion by (Aristotle?):  logos, pathos, and ethos.  If there is some pathos or ethos that will help our case, it might be malpractice not to use it, but that is not an excuse for ignoring logos.

Another reason is how our brains work.  I’m not saying anything novel here, nor is my source something exclusive, but I’m here referring to the brain systems of “Thinking, Fast and Slow,” by Kahneman (a few years old but now back in some prominance by virtue of Michael Lewis’ new book on the partnership that led to that book, “The Undoing Project.”)

Our fast brain system is efficient, focusing on the concrete and relying on rules of thumb (heuristics).  Our slow system is lumbering, relying on abstract principles and using up a lot more energy.  Most humans avoid engaging it unless they have to, and “have to” has different meanings.  Unfortunately, our fast system has a much higher error rate (why wouldn’t it).

The burden on lawyers and judges is to engage our slow brain systems to avoid errors and achieve justice based on abstract rules.  How are we doing?  Not very well.  See my prior posts regarding opposing counsel and courts purporting to decide the effect of the named-party’s “lack of capacity” without relying upon ANY rules regarding the effect of a party’s “lack of capacity.” 

I wish I could say that was an isolated case, but I read numerous briefs by lawyers where I am searching for the “rule” upon which they are basing their desired conclusion, and cannot find it.  You’d think that would mean the court would rule in my favor, but that is not always so.  

My first post explained the wacky (horrible, illogical, misguided, choose your negative adjective) decision in my large construction claim case.  I provided some context, but there is more.  The seeds of the 2016 decision were planted by the same court (different judges) in a 2014 decision, in which it purported to address the name issue (no entity by the plaintiff’s name, due to a typo, just as there is no, to my knowledge, corporation named “Micrasoft”), without thinking through the problem.

In 2014, when the defendant WaferTech pointed out that there was no entity with the name “Business Services of America II, Inc.” (the named plaintiff in the action since 2001, through trial, several appeals and remands, and a summary judgment), the Court of Appeals failed to ask this basic question:  So what?  There is no rule or legal authority that says if you can’t find an entity by the name of the plaintiff, the action is dismissed (as WaferTech requested).  There is unanimity that the court will overlook the “defect” if the defendant waits too long to raise the issue, and certainly allow the plaintiff to address the “defect” before the court will take any action.

The Court of Appeals ignored that.  Instead, it remanded to the trial court in 2014 to determine if a corporation named “Business Services of America II, Inc.” ever existed, without thinking through what the next step would be if (1) one did, or (2) one did not.  If one did, but had no connection to the case, that would prove nothing, as it would not have been the plaintiff.  If one did not exist, then clearly it was not the plaintiff.  The next logical question is, if “Business Services of America II, Inc.” was not the plaintiff, who was?  The Court of Appeals could not be bothered with such a question.

This shows the importance of thinking through a problem.  You can’t stop at step one.  For example, if you’re married and your spouse cheats, that may or may not end the marriage.  It does if you have an iron-clad rule that “Cheating ends a marriage.”  If you don’t, you may consider:  why the cheating, how often, is the cheater remorseful, what are their good qualities, who else will be hurt by ending it, etc.  The Court of Appeals did not have a rule that “no entity by name of plaintiff requires dismissal,” but for whatever reason, failed to ask any other questions.

My blog has already turned three years old.  It’s probably time it started talking.

I created the blog when I realized I had a lot to say, but once I did, I had a hard time figuring out what was important enough that it be my first post.  My latest musings on stories in the news or events in my life just didn’t seem to make the cut.  Plus, it had to tie into the title.  Later posts could meander, but the first one had to hit the target.

I now have a subject that is worthy both in importance and its subject.  It involves a matter in which there is a lot of money at stake (one way lawyers measure importance), and addresses a substantive and fundamental legal issue and how a court addressed (misaddressed?) it.

First, I will provide some background.  I am a lawyer who has been working on a case since 1998, which involves claim by a subcontractor to be paid over a million dollars for its work on a large construction project (with interest and legal fees, the claim may be over $7 million now).  As you can imagine, in that amount of time there have been lots of key moments, but none where so many themes that originally inspired this blog converge.

The event was a decision by the Washington Court of Appeals, Div. II, which purported to decide the case based on a typo in a party’s name which had gone unnoticed (or at least unaddressed) for twelve years, through a trial, two dismissals, remands and subsequent appeals).  The typo was typing “Business Services of America II, Inc.” instead of “Business Service America II, Inc.”  The appellate court did so purportedly based on the “lack of capacity” of the named plaintiff.  (There was no entity by the name of the party, because as I mentioned before, the name contained a typo.  It was as if Microsoft sued Apple for millions of dollars for patent infringement, but the complaint said “Micrasoft” and Apple got the court to dismiss on that basis.)

While the result was bad, the “reasoning” (or lack thereof) was worse.  There are court rules addressing what happens when the named party does not have “capacity to sue.”  There are rules requiring the other side to timely raise the issue or it is waived, and if it is timely raised, the other party has an opportunity to address it before any adverse action can be taken by the court.  You would think an appellate court would cite and discuss these rules, and the prior appellate opinions applying these rules, when it purported to decide an action based on “lack of capacity.”  You would be wrong, oh so wrong.  If you think I’m kidding, here is the link to the unpublished opinion by the court failing to do its job, or at least doing it poorly:

https://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=473160MAJ

The opinion does not cite CR 9 on capacity, CR 12 on dismissal motions based on lack of capacity, CR 15 and 60 allowing amendments to address objections to capacity, or CR 25 addressing transfers of claims while the action was pending, as occurred here.  The defendant, WaferTech, raised its objection to the named plaintiff’s “capacity” for the first time on appeal, despite numerous court decisions and learned legal treatises on civil procedure stating that such an objection may never be raised for the first time on appeal, as it has been waived.  When a defendant in a prior Washington case attempted to do what WaferTech did here (raising an objection to capacity on appeal), not only did the court deny it, but sanctioned the defendant for raising a frivolous issue.  Dearborn Lumber Co. v. Upton Enterprises, Inc., 34 Wn.App. 490, 493-4, 662 P.2d 76 (1983).

The good news is the appellate court is considering my motion for reconsideration, so this travesty may be short-lived.  You can be sure I will post updates following further court rulings.

If you think the point of this blog post was to say “a court made a (dumb) ruling with which I disagree,” I have failed.  That would not be extraordinary or worthy of my first blog post.  My point is a court issued an opinion that failed basic requirements of logic and decision-making with which it is tasked.  A law student who produced the opinion for a writing assignment on legal reasoning would get an “F,” while a young associate at a law firm who turned it in to a partner as a legal research memo on “capacity” would soon be updating his or her resume (or at least have his or her weekend plans destroyed).

Under established law, whether the named plaintiff had “capacity” was the first step in the legal analysis.  It is just a data point.  The next question any court should ask, as any first year law student is taught, is what should the court do with such a data point.  Does it fit into any legal argument or legal rule that allows courts to act:  enter a judgment, dismiss a claim or action, or some other action?

The appellate court did not do so.  It stopped at the data point.  It didn’t even have the courtesy to pay lip service to the dismissal argument and say “dismissed.”  It just affirmed the trial court, which had also not dismissed based on the data point.  That left the parties in legal limbo, with the named plaintiff unable to proceed, but the action not terminated by a dismissal or judgment.  (There was a summary judgment entered in 2013, which was timely appealed, but the appellate court never addressed the summary judgment, so that cannot be said to have terminated the action.)

Another theme, besides poor legal reasoning and decision-making by courts, that converged here was perceived or reputational competence.  I went to a highly-regarded law school (NYU) and have worked on large matters with other accomplished lawyers.  Now I am a solo practitioner in a suburb of Seattle, while my opposing counsel is with a major firm in Portland, assisted by a well-known Seattle appellate lawyer.  Should courts take these disparities in reputational competence into account?  No.  Do they?  Maybe.

A motion for reconsideration is telling the appellate court that after (1) considering an issue for about a year, (2) reading hundreds of pages of briefing, and (3) sitting through oral argument and who knows how many conferences to review the case, it messed up.  That is a tough putt.  When I made my motion, I had a law professor co-sign my motion. (I wrote it, with some input from the professor, related mainly to my style of presentation, not the substance of my arguments.)  It took the appellate court two days to realize it may have made a mistake.  If it had been just me signing it, I doubt it would have gotten the serious consideration it apparently did.