Monday, February 15, 2010

One of the many reasons that my friend Bernie Burk ROCKS!

See Bernie's comment to Howard Wasserman's post ( about the difference between being sued and being held liable on PrawfsBlawg
It seems to me that the interesting question here is how this set of preconceptions differs, if at all, from the dynamics of blame in our culture more generally.

A lawsuit is, for most people not twisted by overexposure to our legal system, about blame. The plaintiff blames the defendant for something, and virtually every cause of action involves a duty (what you should do) and its breach (you didn't do it). Our system posits sanctions for starting an action--asserting blame--without some colorable basis, e.g., Rule 11; the tort of malicious prosecution. These present low thresholds to be sure, but all with the moral underpinnings of "don't blame somebody for something unless you've got the stuff to back it up." (And, interestingly, note how different the ground rules are for defending yourself. There is no tort of malicious defense.)

Blaming someone for something publicly is a serious thing. Just think of how surprised, upset and defensive you feel if someone accosts you at Starbucks and announces that you just cut in line.
With various caveats and perhaps a general reservation about rushing to judgment, we also generally assume that people don't make accusations of any kind without some colorable basis for doing so, even though daily experience provides counterexamples without number. These somehow prove the rule by exciting our outrage at levelling a false accusation, however trivial: exCUSE me, I was standing here in line when I saw you walk in the door over there.

Law students walk into torts class lay people. Small wonder they share the general culture's views about the dynamics of blame and vindication as they play out in the very public forum of litigation. The dissection of claim from liability (with all the slips between the cup of one and the lip of the other) is one of the innumerable counterintuitive wisdoms we internalize in learning to think like a lawyer.
And by the way, a principal challenge of the trial lawyer is learning to think like a person again.

(The writer is a longtime practitioner who is transitioning into law teaching. He welcomes your thoughts, and any news of available positions. References available on request.)
Posted by: Bernie Burk | Feb 15, 2010 2:10:01 PM
Bernie's got that great combo of intellectual gravitas and real-world, law-at-a-high-level experience.  He also has a killer sense of humor.  (See?  Three other reasons why Bernie ROCKS!)

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