The Law Is Seldom Carved in Marble

A lawyer who confidently assures his client that he has all the answers and cavalierly promises specific results is probably one who hasn’t done his homework.

Although some legal issues are well-settled, many more are ambiguous and uncertain. As any law student realizes in his first year of study, the law is rarely black and white. It is almost always tinged in gray.

A law passed by the legislature may seem to say one thing, but a court will interpret it to say another. Or a landmark Supreme Court case may stand for one legal principle, but be questioned or even reversed by a different Supreme Court years later.

Part of the Job

The reason for much of this uncertainty is that the law is not simply what the legislature says it is. Although judges are frequently criticized for “making law,” that function is truly part of their job, especially for appellate court judges. They are supposed to make law; it’s called case law or common law.

The common law is part of our traditional legal system, in which the previous decisions of courts stand for legal principles and bind the future decisions of judges and juries. In Latin, it’s a legal doctrine called stare decisis .

Legislatures cannot and do not pretend to design perfect solutions in advance for all disputes that may arise. That’s why we have courts: to take the laws passed by the legislatures--the statutory law--and apply it to particular disputes.

For instance, Congress passed a law that said you cannot use an original, copyrighted work without the permission of the author. But what happens if you only lift a few lines from a song; is that copyright infringement in violation of the law passed by Congress? A court, applying both the federal statute and legal principles announced in previous cases, will decide.

Courts do much more than apply statutory law to particular disputes. Courts fill in gaps left by the legislature, and when there are no guidelines applicable to a particular situation, they develop their own.

Courts have another responsibility: to interpret the ultimate legal authority for all law, the constitution--both the U.S. Constitution and the various state constitutions. In doing so, a court may decide that a specific statute--passed by the legislature--does not pass constitutional muster. Perhaps a law bans obscenity but defines it so vaguely and broadly that a court will say it violates constitutional guarantees of free speech.

The decisions that count--those that have value as precedents and create the rules and guidelines for trial courts--are not the verdicts reached by judges and juries at the end of trial. When a jury awards a “landmark” sum of $12 million to a paraplegic injured in a car accident, the verdict does not “change” the law in any way. It may be an indication of how much local juries are willing to award for pain, but it does not bind future decisions in the way that a published appellate court opinion would.

The key word is published. After an appellate court has considered an appeal, it will usually announce its decision in writing. The written decision is then published in a bound volume. These published decisions make up the common law.

See for Yourself

It is not that difficult to explore the common law yourself. Years and years of decisions are maintained in the law library. For example, all of the California Supreme Court decisions, literally thousands of them, appear in two publications, the California Reporter and the California Supreme Court Reporter.

If you want to find out how the courts have interpreted a particular statute, ask the law librarian to direct you to the “annotated codes.” These are collections of state statutes. Following each statute is a short summary of the published decisions that have applied and interpreted the statute.

That’s how lawyers do their homework. They read and interpret the decisions to see how they apply to their own cases. When trial judges make decisions before, during and after a trial, they refer to those previous judicial decisions to determine what they should do in the case before them. Uncertain and ambiguous as it is, at least there they can find out what a “law” is supposed to mean.

Legal Brief

Lawyers can attend an all-day seminar Saturday at USC to learn how to represent indigent clients in political-asylum immigration cases. The seminar is sponsored by a number of legal organizations and public-interest groups. In exchange for a fee of $20, lawyers who attend must promise to provide free legal services to an eligible client of Public Counsel, a public-interest law service sponsored by local bar associations. For more information, call the Immigrants’ Rights Office of the Legal Aid Foundation at (213) 386-3525.

Attorney Jeffrey S. Klein, a member of The Times’ corporate legal staff, cannot answer mail personally but will respond in this column to questions of general interest about the law. Do not telephone. Write to Legal View, You section, The Times, Times Mirror Square, Los Angeles 90053.