Possibly stupid question/confused about the "practice of law"

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RdnXP

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Possibly stupid question/confused about the "practice of law"

Postby RdnXP » Thu May 04, 2017 2:39 pm

Hey guys,

Thank you in advance for indulging my question. I am curious about the nature of the practice of law. As a disclaimer, I'm not a law student, only a layman. I understand that our legal system is adversarial, and that a big part of a lawyer's job is to provide counsel to his or her clients as well as help them prepare their case before a court of law (if it goes to trial) or else to reach settlement. The court then passes judgment.

Here's my question: In the context of certain kinds of issues, such as personal injury law where a lawyer represents his or her clients against an insurance company (for example), what is the matter of contention? And why is it a matter of debate? Am I naive, or wouldn't the insurance policy/law/coverage agreement clearly specify when and in what way the insurer must cover the insured? It seems like the kind of thing that would not be a matter of debate or contention. If the provisions are clearly spelled out, then what does the personal injury lawyer do? Investigate/establish facts (i.e is it the facts around the incident that are unclear and arguable, or the contract between the company and the insured)?

I imagine that law, being a socially constructed institution, has a degree of flexibility, but also at some point words have plain meaning, so I don't understand where contention in the law comes from.

By contrast, I understand why criminal lawyers would need to make a case before a court of law, due to imperfect knowledge and the need to establish guilt and consequences. But when it comes to disputes involving insurance, etc. shouldn't it be clear-cut? And this similar question applies to other areas. If a fired employee sues a company, what exactly in contention? Either the company can fire him or not, for a given reason? Or is that too simplistic?

Sorry if the question is stupid. Thanks for your thoughts!

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Re: Possibly stupid question/confused about the "practice of law"

Postby MKC » Thu May 04, 2017 2:41 pm

kellyfrost wrote:


Our resident insurance expert should be with you shortly.
Last edited by MKC on Sat Jan 27, 2018 3:13 pm, edited 1 time in total.

Npret

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Re: Possibly stupid question/confused about the "practice of law"

Postby Npret » Thu May 04, 2017 2:42 pm

You don't understand that insurance companies will argue about amounts owed under their policy?

I think I don't understand your question maybe someone else can help you.

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lymenheimer

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Re: Possibly stupid question/confused about the "practice of law"

Postby lymenheimer » Thu May 04, 2017 2:42 pm

RdnXP wrote:If a fired employee sues a company, what exactly in contention? Either the company can fire him or not, for a given reason? Or is that too simplistic?


If the company cannot fire him, what is his remedy?

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Re: Possibly stupid question/confused about the "practice of law"

Postby Nebby » Thu May 04, 2017 2:44 pm

RdnXP wrote:Hey guys,

Thank you in advance for indulging my question. I am curious about the nature of the practice of law. As a disclaimer, I'm not a law student, only a layman. I understand that our legal system is adversarial, and that a big part of a lawyer's job is to provide counsel to his or her clients as well as help them prepare their case before a court of law (if it goes to trial) or else to reach settlement. The court then passes judgment.

Here's my question: In the context of certain kinds of issues, such as personal injury law where a lawyer represents his or her clients against an insurance company (for example), what is the matter of contention? And why is it a matter of debate? Am I naive, or wouldn't the insurance policy/law/coverage agreement clearly specify when and in what way the insurer must cover the insured? It seems like the kind of thing that would not be a matter of debate or contention. If the provisions are clearly spelled out, then what does the personal injury lawyer do? Investigate/establish facts (i.e is it the facts around the incident that are unclear and arguable, or the contract between the company and the insured)?

I imagine that law, being a socially constructed institution, has a degree of flexibility, but also at some point words have plain meaning, so I don't understand where contention in the law comes from.

By contrast, I understand why criminal lawyers would need to make a case before a court of law, due to imperfect knowledge and the need to establish guilt and consequences. But when it comes to disputes involving insurance, etc. shouldn't it be clear-cut? And this similar question applies to other areas. If a fired employee sues a company, what exactly in contention? Either the company can fire him or not, for a given reason? Or is that too simplistic?

Sorry if the question is stupid. Thanks for your thoughts!

Words do not have consistent meaning and there are also sets of facts that arise that were not contemplated, but could colorfully be included, under a policy's framework. Insurance litigation often involves these instances. Also, there are situations where not all facts are available or where facts are in dispute, and those facts matter in terms of the policy, and therefore two sides will litigate to a conclusion. Also, the concept of liability is generally litigated and whether or not the insured individuals conduct is covered by a policy. It's much more complex than your current understanding of it indicates.

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lymenheimer

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Re: Possibly stupid question/confused about the "practice of law"

Postby lymenheimer » Thu May 04, 2017 2:44 pm

RdnXP wrote:Am I naive, or wouldn't the insurance policy/law/coverage agreement clearly specify when and in what way the insurer must cover the insured?

What happens when the insurance company neglects wrongdoing on behalf of the defendant? What regulates and evaluates the rules of "who is at fault?"

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Re: Possibly stupid question/confused about the "practice of law"

Postby RdnXP » Thu May 04, 2017 2:47 pm

Npret wrote:You don't understand that insurance companies will argue about amounts owed under their policy?

I think I don't understand your question maybe someone else can help you.


Yes, that definitely makes sense as one major area of contention, but how much of it is arguable vs how much is clearly spelled out in the policy?

I guess my question is, when two sides go to court, is it on the assumption that both may be "right" under the law, or is it usually to negotiate exact dollar amounts/sentences? If it's the former, then how much of a gray zone is there in the practice of law with regards to the content of the law?

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Re: Possibly stupid question/confused about the "practice of law"

Postby cavalier1138 » Thu May 04, 2017 2:49 pm

RdnXP wrote:
Npret wrote:You don't understand that insurance companies will argue about amounts owed under their policy?

I think I don't understand your question maybe someone else can help you.


Yes, that definitely makes sense as one major area of contention, but how much of it is arguable vs how much is clearly spelled out in the policy?

I guess my question is, when two sides go to court, is it on the assumption that both may be "right" under the law, or is it usually to negotiate exact dollar amounts/sentences? If it's the former, then how much of a gray zone is there in the practice of law with regards to the content of the law?


There is no such thing as a "clearly spelled out" policy. There are interpretations that are more or less likely to succeed than others, but literally everything in a contract is up for debate, even if it seems completely unambiguous. People will go to court over both the interpretation of when the policy should be paying out and how much it should be paying out.

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Re: Possibly stupid question/confused about the "practice of law"

Postby RdnXP » Thu May 04, 2017 2:51 pm

cavalier1138 wrote:
RdnXP wrote:
Npret wrote:You don't understand that insurance companies will argue about amounts owed under their policy?

I think I don't understand your question maybe someone else can help you.


Yes, that definitely makes sense as one major area of contention, but how much of it is arguable vs how much is clearly spelled out in the policy?

I guess my question is, when two sides go to court, is it on the assumption that both may be "right" under the law, or is it usually to negotiate exact dollar amounts/sentences? If it's the former, then how much of a gray zone is there in the practice of law with regards to the content of the law?


There is no such thing as a "clearly spelled out" policy. There are interpretations that are more or less likely to succeed than others, but literally everything in a contract is up for debate, even if it seems completely unambiguous. People will go to court over both the interpretation of when the policy should be paying out and how much it should be paying out.


Thank you for your thoughts!
So, what then distinguishes one personal injury lawyer from another, in terms of trial outcomes?
Is it a matter of "any case can be won with the right lawyer"?

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Re: Possibly stupid question/confused about the "practice of law"

Postby cavalier1138 » Thu May 04, 2017 2:53 pm

RdnXP wrote:Thank you for your thoughts!
So, what then distinguishes one personal injury lawyer from another, in terms of trial outcomes?
Is it a matter of "any case can be won with the right lawyer"?


Kinda... It also depends on the judge and the strength of your case.

I'm starting to feel like maybe you're looking for legal advice and/or a referral to a local lawyer who handles personal injury suits...

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Re: Possibly stupid question/confused about the "practice of law"

Postby RdnXP » Thu May 04, 2017 2:58 pm

cavalier1138 wrote:
RdnXP wrote:Thank you for your thoughts!
So, what then distinguishes one personal injury lawyer from another, in terms of trial outcomes?
Is it a matter of "any case can be won with the right lawyer"?


Kinda... It also depends on the judge and the strength of your case.

I'm starting to feel like maybe you're looking for legal advice and/or a referral to a local lawyer who handles personal injury suits...


That gave me a laugh, but no I'm definitely not. What I'm really trying to wrap my head around is how "objective" the law, or the practice of it, is.

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A. Nony Mouse

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Re: Possibly stupid question/confused about the "practice of law"

Postby A. Nony Mouse » Thu May 04, 2017 3:18 pm

I mean, it's objective in that you can't completely make things up out of thin air, and there is existing law that you have to address and can't simply ignore. It's subjective in that your lawyer's skill matters and the inclinations of your judge (and jury if there is one) also matter.

Keep in mind that cases only get to court when there is some legitimate argument to be made that matters are unclear/ambiguous. Cases settle before that many many times because the parties come to an agreement on how things should be handled. If they get to trial there is usually at least some room for arguing either side successfully. (It might not be a lot, but there has to be something.)

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Re: Possibly stupid question/confused about the "practice of law"

Postby RdnXP » Thu May 04, 2017 3:22 pm

A. Nony Mouse wrote:I mean, it's objective in that you can't completely make things up out of thin air, and there is existing law that you have to address and can't simply ignore. It's subjective in that your lawyer's skill matters and the inclinations of your judge (and jury if there is one) also matter.

Keep in mind that cases only get to court when there is some legitimate argument to be made that matters are unclear/ambiguous. Cases settle before that many many times because the parties come to an agreement on how things should be handled. If they get to trial there is usually at least some room for arguing either side successfully. (It might not be a lot, but there has to be something.)


That makes sense. So when cases settle, is the main role of the attorney to be a negotiator? And when you say "lawyer's skill", do you mean investigative? knowledge of precedent? etc.

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mjb447

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Re: Possibly stupid question/confused about the "practice of law"

Postby mjb447 » Thu May 04, 2017 3:45 pm

You might enjoy a case called FRIGALIMENT IMPORTING CO. v. B.N.S. INTERNATIONAL SALES CORP., which is discussed in a lot of 1L contracts courses. The case required a court to interpret what the word "chicken" meant in a contract between Plaintiff and Defendant: in doing so, the court analyzed things like the "dictionary meaning" of the word, the contract as a whole, negotiations between the parties, trade usage of the word as established by certain regulations and testimony, what the parties should reasonably have expected (Plaintiff's definition would have resulted in Defendant deliberately contracting to incur a loss), and the subsequent conduct of the parties. A primary takeaway for blossoming 1Ls is that even facially unambiguous contractual terms can result in litigation and colorable argument on BOTH SIDES.

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MKC

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Re: Possibly stupid question/confused about the "practice of law"

Postby MKC » Thu May 04, 2017 3:47 pm

Something something vehicles aren't allowed in the park.
Last edited by MKC on Sat Jan 27, 2018 3:13 pm, edited 1 time in total.

RdnXP

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Re: Possibly stupid question/confused about the "practice of law"

Postby RdnXP » Thu May 04, 2017 3:55 pm

mjb447 wrote:You might enjoy a case called FRIGALIMENT IMPORTING CO. v. B.N.S. INTERNATIONAL SALES CORP., which is discussed in a lot of 1L contracts courses. The case required a court to interpret what the word "chicken" meant in a contract between Plaintiff and Defendant: in doing so, the court analyzed things like the "dictionary meaning" of the word, the contract as a whole, negotiations between the parties, trade usage of the word as established by certain regulations and testimony, what the parties should reasonably have expected (Plaintiff's definition would have resulted in Defendant deliberately contracting to incur a loss), and the subsequent conduct of the parties. A primary takeaway for blossoming 1Ls is that even facially unambiguous contractual terms can result in litigation and colorable argument on BOTH SIDES.


Thanks for the recommendation! Do you think the is a strength or weakness of the legal system? At what point is it just pedantry?

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Re: Possibly stupid question/confused about the "practice of law"

Postby B90 » Thu May 04, 2017 3:56 pm

MarkinKansasCity wrote:Something something vehicles aren't allowed in the park.

...but tricycles may or may not be.

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Re: Possibly stupid question/confused about the "practice of law"

Postby mjb447 » Thu May 04, 2017 4:06 pm

MarkinKansasCity wrote:Something something vehicles aren't allowed in the park.

I sometimes use chicken as a vehicle for BBQ sauce (particularly if I'm taking it to the park). I hope metaphorical vehicles are okay.

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Re: Possibly stupid question/confused about the "practice of law"

Postby B90 » Thu May 04, 2017 4:11 pm

mjb447 wrote:
MarkinKansasCity wrote:Something something vehicles aren't allowed in the park.

I sometimes use chicken as a vehicle for BBQ sauce (particularly if I'm taking it to the park). I hope metaphorical vehicles are okay.

In court, yes*
On a law school exam, no.

*Obviously this, like anything else that happens in court, is judge-specific.

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Re: Possibly stupid question/confused about the "practice of law"

Postby mjb447 » Thu May 04, 2017 4:11 pm

RdnXP wrote:
mjb447 wrote:You might enjoy a case called FRIGALIMENT IMPORTING CO. v. B.N.S. INTERNATIONAL SALES CORP., which is discussed in a lot of 1L contracts courses. The case required a court to interpret what the word "chicken" meant in a contract between Plaintiff and Defendant: in doing so, the court analyzed things like the "dictionary meaning" of the word, the contract as a whole, negotiations between the parties, trade usage of the word as established by certain regulations and testimony, what the parties should reasonably have expected (Plaintiff's definition would have resulted in Defendant deliberately contracting to incur a loss), and the subsequent conduct of the parties. A primary takeaway for blossoming 1Ls is that even facially unambiguous contractual terms can result in litigation and colorable argument on BOTH SIDES.


Thanks for the recommendation! Do you think the is a strength or weakness of the legal system? At what point is it just pedantry?

Probably a strength overall that those types of arguments are permissible and sometimes win, although there are times when someone takes a risk and tries to escape the consequences based on an ambiguity that they were or should have been aware of. Distinguishing those cases is one of the court's roles.

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Re: Possibly stupid question/confused about the "practice of law"

Postby MKC » Thu May 04, 2017 4:14 pm

mjb447 wrote:
MarkinKansasCity wrote:Something something vehicles aren't allowed in the park.

I sometimes use chicken as a vehicle for BBQ sauce (particularly if I'm taking it to the park). I hope metaphorical vehicles are okay.


I'm going to need several paragraphs of analysis arguing BOTH SIDES to decide.
Last edited by MKC on Sat Jan 27, 2018 3:13 pm, edited 1 time in total.

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Re: Possibly stupid question/confused about the "practice of law"

Postby snowball2 » Thu May 04, 2017 4:18 pm

RdnXP wrote:And this similar question applies to other areas. If a fired employee sues a company, what exactly in contention? Either the company can fire him or not, for a given reason? Or is that too simplistic?

Sorry if the question is stupid. Thanks for your thoughts!


Some people (generally higher-compensated employees) have employment contracts which should lay out terms of separation from employment. But even then it's not clear cut. As with any contract there can be elements of bad faith in performance, as just one example. Let's say the employee was entitled to annual bonuses which are paid out on a certain date. If, again by way of example, the person is terminated before that date and is therefore not paid a bonus the dispute may be about whether the employee has sufficiently performed the duties that resulted in the bonus and whether the firing was timed to avoid paying the bonus.

For "at-will" employees (those with no contractual right to employment) the law says they can be fired for "good reason, bad reason or no reason at all" WITH THE EXCEPTION THAT they cannot be fired for an unlawful reason, such as gender, race, sexual orientation, disability, age. The employer will claim that the termination was either performance related or other not-unlawful reason. The employee has the burden of proving that the decision was based on unlawful factors. If the person presents a good faith basis for their belief they can then conduct discovery and try to either establish a pattern of treatment for others in the same group or otherwise develop evidence.

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Re: Possibly stupid question/confused about the "practice of law"

Postby snowball2 » Thu May 04, 2017 4:19 pm

snowball2 wrote:
RdnXP wrote:And this similar question applies to other areas. If a fired employee sues a company, what exactly in contention? Either the company can fire him or not, for a given reason? Or is that too simplistic?

Sorry if the question is stupid. Thanks for your thoughts!


Some people (generally higher-compensated employees) have employment contracts which should lay out terms of separation from employment. But even then it's not clear cut. As with any contract there can be elements of bad faith in performance, as just one example. Let's say the employee was entitled to annual bonuses which are paid out on a certain date. If, again by way of example, the person is terminated before that date and is therefore not paid a bonus the dispute may be about whether the employee has sufficiently performed the duties that resulted in the bonus and whether the firing was timed to avoid paying the bonus. (There are easily 100 other ways disputes can arise).

For "at-will" employees (those with no contractual right to employment) the law says they can be fired for "good reason, bad reason or no reason at all" WITH THE EXCEPTION THAT they cannot be fired for an unlawful reason, such as gender, race, sexual orientation, disability, age. The employer will claim that the termination was either performance related or other not-unlawful reason. The employee has the burden of proving that the decision was based on unlawful factors. If the person presents a good faith basis for their belief they can then conduct discovery and try to either establish a pattern of treatment for others in the same group or otherwise develop evidence.

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Re: Possibly stupid question/confused about the "practice of law"

Postby kellyfrost » Thu May 04, 2017 4:40 pm

MarkinKansasCity wrote:
kellyfrost wrote:


Our resident insurance expert should be with you shortly.


Thanks for the call in. I think a lot of the posters above have answered the questions very well and have even identified that OP's questions are somewhat difficult to understand. I think the difficulty comes from the fact that OP is a layman and has a completely different understanding of the practice of law than an attorney or law student would.

However, to try and help answer a few of the general questions OP has:
In a personal injury matter, what is the matter of contention? Generally, the matter of contention is liability (who is at fault, and to what degree), or does insurance coverage exist (does the policy cover the cause of loss or liability), and 3) damages (who is owed what, and how much?)
Although OP did not ask specifically, I think it is important to point out that any liability insurance policy will include a duty on the part of the insurer to defend the policyholder. If you get sued and there is even a possibility that coverage under your insurance policy exists, it is the duty of the insurance company to provide a legal defense for as a policyholder. This is how Defendant's attorneys get involved in the case.
So personal injury lawyer's client was injured in a car accident and sues the other driver. The other drivers insurance company appoints (typically) an attorney to defend the drive in the legal case.

Insurance law, the insurance policy, or coverage agreement can not perfectly specify the coverage afforded in every single situation. There are simply too many fact dependent situations that could happen. You are applying a boilerplate document to a specific set of facts. There is always something to argue. Coverage, liability, and damages being the main arguable items.

What does a personal injury attorney do? (I am not one, but this is my view from the distance). They investigate facts, evaluate the claim, negotiate the claim with insurance company, prepare all phases of litigation such as complaint, discovery, summary judgment, motions, trial, appeals, ect.

Keep in mind that insurance is literally tied to nearly everything in this world. The building you are sitting in is insured, the means of transportation you arrived at this building in is insured (we hope you have car insurance!), the World Trade Center buildings were insured, the satellites that were launched into space to provide you with XM radio were insured at launch, college football players take out insurance policies in case of injury or disability that will impact their draft selection (and money). Everything is insured, so nearly all phases of litigation will involve insurance. Directors and Officers of large and small corporations are insured. Your attorney is insured. Ect, ect.
Last edited by kellyfrost on Sat Jan 27, 2018 2:14 pm, edited 1 time in total.

cavalier1138

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Re: Possibly stupid question/confused about the "practice of law"

Postby cavalier1138 » Thu May 04, 2017 4:54 pm

I'm so confused by the point of this thread.

OP: what practical purpose are you hoping this thread will serve? If it's just edification, I'm not sure how edified you're going to be by having a bunch of us give you the Cliff's Notes versions of canons of construction.



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