Law and Pizza and Non-Competes, Oh, Myyyyyyy

Yeah, I’m doing the whole Bar Exam thing. Again.  Blech.

I’ve realized something about the law that I didn’t even realize while I was in law school (I’m not the sharpest stick in the shed, needless to say; you can tell that because I’ve failed to pass the Bar Exam twice):

The law is not about justice.  Or rather, what lawyers do isn’t about justice.  I don’t mean to knock my friends, associates, classmates, and archenemies who are lawyers.  But.  What lawyering is about is primarily knowing the rules.  

That is to say, the better lawyer is not the more passionate one or the one with the better cause.  The better lawyer, ceteris paribus, is the one who can better exploit their knowledge of the law (be it constitutional, statutory, common, or regulatory) to achieve the end they have in mind.

This sounds harsh, in a way, like law is just a game.  Well, it is, and it isnt.  

Let’s take the example of statutory law.  Statutes are not created by lawyers, they’re created by legislators (who may be, but often aren’t, lawyers).  The legislature (state, here) makes a law.  It might be a good one, or it might not be.  It might be well- or poorly-drafted (I have had a look at some that are horrendous!).  But let’s say it’s a popular law.  And let’s assume, for purposes of argument, that whatever else it may do, it’s constitutionally (state and federal levels) valid.  So this law goes to the executive (the governor) who signs it.  Let’s assume, for the sake of argument, that it’s a good statute.

Now, it’s law.

It might not ever get used (you’d be amazed at how many such laws there are, but that’s neither here nor there).  But suppose that it does, that the the statute creates a cause of action for P when D does something.  That is to say, D has acted in a particular way toward P; the statute permits P to seek a remedy by bringing a lawsuit against D. We can think of, oh, a statute that upholds non-compete agreements in contracts.  Here, maybe one that includes a provision that when D terminates his employment at P’s Pizza Parlor, he may not open a restaurant of similar type within five miles for one year.  Only, as it happens, D opens D’s Hot Cheese Pies across the street from P’s Pizza just six months after quitting.  What to do, what to do?  What’s similar?  And what’s a restaurant?

At this point, let’s assume a bench trial.  That means that the judge is the “finder of fact”–no jury.  The judge will thus, after some preliminaries (which are actually very, very important, but which I’m going to skip here) (and assuming the thing gets to trial anyway; most cases don’t) listen to the arguments of attorneys for A and B.  The attorney for P (who we call the plaintiff) will try to convince the judge that D (the defendant) in fact acted in the way that the statute describes (in this case, that what D did violated the non-compete agreement in his contract with P, and that D is thus liable to P for the damages described in the statute).  Conversely, the attorney for the defendant will try to convince the judge either that D did not, in fact, act in the statutorily proscribed fashion toward A or, alternatively, that, if D did act in that way, there was some mitigating circumstance that permits D to escape the outcome prescribed by the statute (perhaps there is a section of the statute that explicitly–or more fun still, implicitly–carves out an exception for certain restaurant workers, say, busboys.  In that case, D’s attorney would do well to try to establish that D was in fact a busboy, and so not within the statute’s intent).

These arguments are made with not only fact but also precedent–what higher courts in the state have said about this statute (Justice Scalia has had some things to say on the topic of pizza on the federal level).  How have they interpreted it?  If, for example, the statute says that up is down, does that also mean that under the statute down is up?  Or not?  If black is white, does that mean that the statute should be read as saying that white is black?  Precedents can also be brought in from other jurisdictions, including other states and (sometimes) other nations.  Law is built upon law, so it’s a matter of tracing the legs of the elephant down, down, until you reach the next elephant.  And so on.

Lawyers have the unenviable task of finding the earth on which the last elephant stands (or sits), and then, following interpretive step by interpretive step, making the best possible case for their client.  The thing to notice is that it may not be the actual actions of the clients that are in question at all (“there is no question that on March 17, D opened a restaurant called D’s Hot Cheese Pies at 37 Beetlebaum road.”) but only the correct interpretation of those actions.  Lawyers like to use the term “distinguish,” as in, “In Chianti v. Rose, the court held that a crust covered with tomato sauce and cheese was properly  construed as a pizza; here, the defendant’s sauce was based on a mix of red peppers and mashed bananas–thus Chanti is clearly distinguishable, and not on point.”  It sounds picayune.  It can sound intensely silly.  It’s not.  

We live in a messy, complicated world, and the law–and lawyers–help us to organize and understand it.  But don’t make the mistake of thinking that the outcome of this process is necessarily just, in a sense that a non-lawyer would recognize.  It almost certainly is just, from a purely procedural perspective.  Which is what lawyers are there to ensure.

Whether an outcome under this system is substantively just, well, that’s another question, for another day.

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