The US Defense Secretary Donald Rumsfeld once famously stated:
‘…there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns—the ones we don't know we don't know. And… it is the latter category that tends to be… difficult….’
If you are wondering how to gain a measure of confidence about your legal position, read on.
Let’s start with the story arc of virtually all the thousands of legal cases that are reported each year.
The judge will start off by describing the facts, i.e., what happened. My neighbour has a big tree. There was a storm, and a branch fell on my car.
Next, the judge will introduce some kind of rule or legal principle. Thou shalt not be so careless that you harm your neighbour’s goods.
The judge will then try to apply the law to the facts. Okay, your neighbour had a duty not to be careless. Does that mean he should have trimmed his tree? Was it predictable that if he didn’t trim his tree that a branch would fall on your car? Should you have parked somewhere else?
Lastly, the judge will sum up, giving you the outcome. In this example, either your neighbour will be found not liable, or your neighbour has to pay you some money.
The legal system works on the very simple idea that like cases should be treated the same.
In theory, that means that if you can find a similar reported case, then you should be able to predict your outcome.
In practice, your lawyer will need to research the law, and other similar cases. A lot of people gloss over this point, but it is very important – especially in a complex case - that you understand how that research process has gone.
When your lawyer reviews the research trail with you, it should help you understand how well you know what you know.
You should also be able to gain a sense about what you don’t know, and what the risks are.
At Lucas and Lucas we discuss five key questions to help our clients understand the research process. This is how you can ‘know’, and gain the measure of confidence you are after.
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