DeanWuBlog

Issue Spotting

From time to time, I work with lawyers. What I mean is that from time to time, I work with lawyers as a client. Whenever that occurs, I bear in mind I am the client – meaning both that I have decision-making authority and cannot delegate my responsibilities and that I have retained an expert because of her expertise.

In working with some lawyers recently, I was reminded of the importance of issue-spotting as a skill. When I was a student, I wondered why, on final exams, professors didn’t do us the favor of identifying the issues they wished for us to analyze, rather than having us engage in the task of figuring out what was going on in a hypothetical fact pattern. It seemed perverse, unfair, perhaps silly.

Yet in working with counsel, I realized again how well they were trained to see the relevant controversies, indeed the outlines of risks that might never be realized, which were present in the situation we faced and of which I was quite unaware. We cannot very well rely on opposing counsel, or the court to help us out in this regard. If it is the former, we have ceded the crucial opportunity of framing – setting the agenda for discussion and the parameters within which it will proceed. If it is the latter, we have shown our weakness and our need for intervention, sympathetic or not.

Issue-spotting is the prerequisite to everything else. One must know there is potential issue, be able to assess the realistic likelihood it will materialize, exercise good judgment as to how much resources to devote to it, and so on – all as a preliminary analysis before turning to the merits of the matter.

Inference

I woke up this morning to see snow on the ground where there was none before. I slept soundly through the night, and I did not awaken at any point. I did not see snow falling during the night. Yet it is reasonably to infer that indeed it snowed during the night; it would be absurd to deny it.

This is a good demonstration of the power of inference. We infer all day, every day. We could not function if we required, in ordinary decision-making, direct evidence of each fact we considered.

There is nothing wrong with an inference per se. It may be less persuasive than direct evidence -- for example, awakening in the night, looking out the window, and seeing the snowflakes coming down -- but it can be only slightly less persuasive. The inference should be evaluated on its strength -- i.e., how many times has direct evidence proven the same proposition, reliably -- and not dismissed merely because it is an inference. The argument against an inference should be framed as "That inference is unwarranted, because . . ." and not as "That is an inference, and therefore unwarranted."