What Is This Thing I’m Reading? Talking To Non-Lawyers About Case Law.
Chatting with a new acquaintance some years ago, I learned that he lived on a block that I happened to know was the locale of a terrible incident in which two LAPD officers were blown up trying to dismantle a bomb in a residential garage. Since my horrified new friend had not heard of it, I said I’d get him a document that described the event, having in mind the Court of Appeal’s published opinion affirming the bomb maker’s murder conviction. After decades practicing appellate law, it did not occur to me to consider how an appellate opinion might strike a non-lawyer.
At our next encounter, I gave him a copy of People v. Morse (1992) 2 Cal.App.4th 620, which describes the explosion in detail. He read it and thanked me for filling him in, but he was curious about what exactly the opinion was—“It’s an interpretation of the law, right? What is it for?” he asked.
As I tried to explain that the appellate decision was not only an interpretation of the law but also was itself law, I realized I was speaking a foreign language. Though intelligent and educated, my friend had no concept of case law—when he thought of “the law,” he envisioned statutes and didn’t immediately see why their application should require interpretation. They mean what they say, he thought. When I explained that statutory application isn’t always obvious, and that published appellate decisions create the law as established by the outcome of former decisions—and may interpret statutes, or those former decisions, or both—his initial reaction was skepticism. It seemed to him I was saying that judges make things up.
On the fly, I did my best to offer some quick highlights on American jurisprudence, explaining that case law refers to legal principles developed through judicial decisions like the one I’d given him to read; that lower courts are bound by the decisions of higher courts; and that the principle of stare decisis generally requires courts to follow precedents set by earlier court decisions. I think I was persuasive. I hope so.
I’ve found that my friend’s reaction was not unusual. Many people, perhaps most, don’t understand the nature or importance of case law. Many don’t even know it exists. Since I’m often asked, “what do you appellate lawyers do?” and since answering that question inevitably entails mentioning case law, I try to have in mind a quick, cogent explanation of how the system works.
In fact, I think it’s a good idea for all lawyers to keep such a quick explanation in their back pocket. As attorneys, we each take an oath to faithfully discharge the duties of an attorney at law to the best of our knowledge and ability (Bus. & Prof. Code, § 6067); seizing life’s little opportunities to educate the public on the workings of our legal system is one means of fulfilling that obligation.
About the Author
ByFeris M. Greenberger, Esq. – Partner in The Law Firm of Greines, Martin, Stein & Richland LLP. The firm specializes in civil appellate practice, including appeals, writs, and trial court consulting.