I think Holmes is saying in that passage that the client pays for the prediction.

Holmes instructs us that the law consists of the “prophecies of what the courts will do in fact.” Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 460-61 (1897). Thus, knowing how the courts will rule, a lawyer will advise her client what action to take or from which to refrain in any given situation.

Not taken in context. Holmes is asking "what is law" for the purpose of learning law. To say that counseling, "in any given situation" requires predicting what courts will do shortchanges most counseling. My organization, SFLC, is primarily engaged in counseling clients. I think we spend probably no time each week predicting what courts will do. Predicting what will cause the IRS to issue a positive determination of 501(c)(3) tax exempt status doesn't require predicting how the Tax Court would rule if we sued on a negative determination; predicting whether the California Secretary of State will file a corporate formation or reject it is not about how courts will rule. Helping a client decide how much resource it wants to put into trademark enforcement activity, or suggesting amendments to its trademark licensing policy does not require any prediction of any litigation outcome, and so on. Writing an opinion letter on whether a certain proposed form of software distribution would comply with or violate the terms of a particular free software license we helped to draft in the first place does not require prediction of what a court would rule in a copyright infringement action: it is closer to issuing a ruling than predicting one. Those happen to be the three legal matters that crossed my desk as the supervisor of my senior lawyers in the last thirty-six hours, and none of them conforms to the archetype advanced.

As I said in my comments on the first draft, getting away from the litigation-focused examples used by Holmes (who is writing about learning law rather than practicing law, and who means really "learning about common and statute law" in doing so) to consider a broader range of contexts in which lawyers advise clients will help to create new ideas. You've tried faintly to achieve that result below, but further effort in that direction would yield further improvement.

Combined with an intimate understanding of her client’s unique goals, this ability to predict leads the lawyer to an effective risk management strategy that will best yield her client’s desired results.

This makes it appear that lawyers are clients' risk managers. That may be true in some cases, but not in most. Organizations that perform risk management are unlikely to do so through their outside counsel. For them, opinions of counsel are tools for managing risk, and far from the only or the most important tools in the box. Individual clients or small businesses aren't likely to perform risk management activities explicitly, and they are more likely to discuss most risk and liability issues with their insurance agents than their lawyers.

Knowledge impacts advice?

The specter of litigation, penalties, or other enforcement actions inform as to the risks of action or inaction. True, some lawyers also counsel their clients as to public perception and other informal consequences, but as Holmes sets forth, the “law” itself is the likelihood and result of the incidence of public force. With the possibility of public force looming, a lawyer’s first goal, then, is prediction. Knowing the consequences of a client’s decisions is the not a lawyer’s only task, but is her primary step in achieving success for her client.

What did this paragraph say?

This is another use of a statement out of context. Holmes is trying to show that all juridical relations can be described in terms of consequences in the actions of courts, rather than as arising independently, from some moral or extra-systemic locale. A "duty" refers to an action or forbearance that will be eventually ordered by a court if not otherwise discharged. A "right" is the benefit of someone else's duty; elsewhere in Holmes' system we see the importance of the conclusion that duties are anterior to rights.

This point may be important in its original context, but I'm not sure exactly what it is adding here. The inference to which it gives rise is that a lawyer's role is to predict the consequences of client actions, which is the same point you've expressed earlier in other ways. What was this proposition supposed to add.

Leaving aside the point about the lawyer as risk manager, treated above, these 105 words seem to amount to "the lawyer must understand the client's instructions in light of the client's preferences." What else was being said here?

What makes this example "instructive"? What are we actually learning from it in this context? Is the point about implicit instructions?

What was the outcome of this "real world" case? Why did this "real world" practitioner take it, and what fee arrangements did he make, I wonder, for the representation?

Why do you speak of predicting the client's preferences? Surely the lawyer's task is to receive instructions and execute them, not to predict what they would be if he sought to receive them.

Are you using "strategy" and "tactic" as artful synonyms? Strategy means choice of objectives and allocation of resources; those are the decisions one expects clients to make. Tactics, the operational methods of achieving defined objectives given allocated resources, might more usually be within the compass of lawyers' decisions. But those are operational decisions, and in organizations that differentiate risk management, it is precisely not the business of the operational decision-maker. Risk managers stand apart from the operational achievement of objectives. They instead develop procedural and substantive measures for coping with the unintended or contingent consequences of operations.

I don't think this rewrite is particularly successful. Perhaps I meant to facilitate in my original comments a more comprehensive reconceptualization of the first draft. It seems to me that instead specific propositions or phrases were layered in to the previous text, leaving less coherence overall, and not quite so much conceptual progress as I thought you were in a position to make.

Holmes wrote an essay about how to learn the law. You are writing an essay about how those ideas might be understood in connection to what lawyers do when they practice, specifically when they advise or counsel clients. Translated to this context, Holmes' point is that simple basic charter of realism: things are what they do, not what they are called. Counseling is about helping clients to understand the consequences of possible actions and structures, which means helping them to predict social processes. For a client, the law is a prediction of what courts and other regulatory agencies will do, in the same sense that contracts are about predicting what contractors will do, and marriage is about predicting what one's spouse will do. Counseling therefore means giving the client improved means to project into the future the consequences and significance of present or contemplated decisions, habits, practices, designs. Holmes' point, which is most relevant to students, is that focusing on the predictive quality of legal substance simplifies learning the law by purging it of extraneous ways of formulating rules. The relevance of consequentialism to practitioners is different. By asking what a lawyer is really doing in advising a client, one can go beyond Holmes' point about the effect of realism on how one learns law to formulate a new view about what we do when we go from learning law in school to practicing it in the world. Surely that will help us to understand and overcome some portion of our fear of actually practicing law, of really "being a lawyer," which drives so many students into taking office-worker jobs as drones in larger organizations to which they pawn their licenses.

Navigating the Path of the Law

PREDICTING THE OUTCOMES

KNOWING YOUR CLIENT

MANAGING RISK

Why use section headings that convey no information to the reader?

Is that what Holmes said? Or rather, that the purpose is to give reliable predictions of the incidence of the public force? In tax practice, the usual purpose is to assist in structuring transactions to avoid taxes, or to determine whether costly and risky efforts to avoid taxes will be worth it. In administrative contexts, the lawyer's predictions may be used for the purpose of reducing or sidestepping regulatory burdens on business profitability. Even in the context of litigation, lawyers' predictions affect whether litigation is initiated as well as how it is avoided, managed or defended.

What, then, is the role of Holmes’s theory of lawyering over 100 years later, at a time when society has arguably become more litigious?

"Arguably" is a weasel word here. It means "I have no data to provide, but I need this factual assumption in order to make my argument, so "arguably" what I say is true.

The statement is plausible. But if your editorial attention had been scrupulous, questioning the statement might not only have sent you in search of evidence to back it up, it might have led to a more through questioning of the exclusively defense-sided litigation-focused interpretation you are putting on an approach Holmes means more generally.

Wouldn't it be correct to say that the decisions about which risks to evaluate are shared between lawyers and clients? That clients ultimately decide, and that lawyers may suggest but not determine possible courses of conduct and levels of tolerable risk?

Though some might reply to such a question, “That’s obvious. Both,” this response overlooks the possibility that a lawyer’s advice to her client might differ depending on which of these two goals she is pursuing. These choices may be mutually exclusive,

Not analytically. In advising clients I evaluate all the time the nature of risks and costs intermediate to desired outcomes, as well as the overall likelihoods of those outcomes. Some thought devoted to the difference between strategy and tactics might be useful here.

and today’s lawyers must know which path to pursue. If the objective is to avoid suit entirely, it stands to reason that good counsel would be even more conservative, so as not to enflame the less competent lawyers and more litigious clients who are quicker to sue and less able to accurately predict outcomes in court. In Holmes’ day, this may have been the exception, and thus he avoided basing theory on infrequent occurrences. Today, though, the courts frequently see frivolous lawsuits and many clients factor a certain amount of legal conflict into their budgets. As such, lawyers must be able to advise their clients’ actions given both the possibility of winning a lawsuit, and also the possibility of being sued in the first place.

As well as many other probabilities in many other contexts. Why doesn't the concept of "risk management" enter into the conversation.

Section II

I think this is a peculiar example to choose. Most of the time, the way we know what our clients want is that they tell us. The usual problem in counseling is that the client hasn't yet formulated relevant instructions, because the issues on which a decision is required have not yet become clearly visible. The lawyer's task is to bring to the client's attention the issues that require decision, to frame the inquiries necessary to determine the risks or opportunities involved, to indicate the strategic objectives and resources involved in managing the risks or exploiting the opportunities, and to frame tactics intermediate to the achievement of the client's resulting strategic determinations. Robinson's point about the obscurities involved in dealing with client subterfuge is hardly a general theory of representation.

Then, reconciling the implicit advice of these two lawyers, which may yet be compatible, the good lawyer must predict what will get a client sued, what a judge will decide, and what her client desires.

Predicting client intentions does not strike me as a good summary of the process of counseling.

Some clients will choose to be more conservative, adopting an approach that avoids the likelihood of suit entirely. Other clients, however, may be less risk-averse; his lawyer will be doing her job when she, as Holmes directs, predicts if her client will be made to suffer by judgment of the court. All of this comes down to a lawyer’s ability to predict, the key element in Holmes’s piece. Without the paramount assets of foresight and sound judgment, she will be hard pressed to deliver on her client’s goal, whatever it may be.

The most obvious places for improvement of the draft have been indicated in the comments above, I think. In general, the effort to show that Holmes is wrong or outmoded probably could give way to a more analytic discussion of lawyers' inputs to risk management for business clients, or a further inquiry into how individual client counseling works in the context of Holmes' general point, among other possible approaches.

A Modern Path of the Law

-- By JanePetersen - 15 Feb 2012

Section I

According to Oliver Wendell Holmes, Jr., the task of the lawyer – the good lawyer, at least – is to predict. Accurate prediction is the key to her success, as clients pay her to keep them out of court. Holmes instructs us that the law consists only of the “prophecies of what the courts will do in fact.” Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 460-61 (1897). Thus, knowing how the courts will rule, a lawyer will advise her client what action to take or from which to refrain in any given situation. The purpose of this, we’re taught, is to keep her client out of court entirely.

What, then, is the role of Holmes’s theory of lawyering over 100 years later, at a time when society has arguably become more litigious? Even though a lawyer may correctly predict a judge’s eventual decision, this act alone may not keep her client out of court. Her client’s opponents may very well have less adequate counsel, with poor ability to predict a judge’s decisions. In this context, her client will get sued anyway. Though she will likely eventually prevail in a court of law, she will end up arguing before a judge first, thereby failing in Holmes’s principle goal.

Today’s lawyers, then, must attempt to understand Holmes’ conception of the job of a lawyer in a way that will be as effective now as it was in 1897. Holmes instructs us, “…a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court; and so of a legal right.” Id., at 458. To apply this maxim today, a lawyer must know whether her aim is to avoid her client being sued in the first place, or to win in front of judge in the event of a lawsuit.

Though some might reply to such a question, “That’s obvious. Both,” this response overlooks the possibility that a lawyer’s advice to her client might differ depending on which of these two goals she is pursuing. These choices may be mutually exclusive, and today’s lawyers must know which path to pursue. If the objective is to avoid suit entirely, it stands to reason that good counsel would be even more conservative, so as not to enflame the less competent lawyers and more litigious clients who are quicker to sue and less able to accurately predict outcomes in court. In Holmes’ day, this may have been the exception, and thus he avoided basing theory on infrequent occurrences. Today, though, the courts frequently see frivolous lawsuits and many clients factor a certain amount of legal conflict into their budgets. As such, lawyers must be able to advise their clients’ actions given both the possibility of winning a lawsuit, and also the possibility of being sued in the first place.

Section II

An alternate, more modern, school of thought might provide the answer on updating Holmes’ wisdom for today’s lawyers. Robinson in Lawyerland suggests that the lawyer’s job is not only to predict outcomes, but ultimately to do what her client wants. When Robinson discovers that a client of his may actually want to receive jail time, he does the “Popeye dance” to avoid detection and achieve his client’s goals. First, the lawyer must “get the idea” – she has to understand her client’s motivations and goals so she can respond appropriately. Then, however, she does not necessarily make all efforts to “win,” per se; she makes all efforts to achieve the outcome her client seeks.

Then, reconciling the implicit advice of these two lawyers, which may yet be compatible, the good lawyer must predict what will get a client sued, what a judge will decide, and what her client desires. Some clients will choose to be more conservative, adopting an approach that avoids the likelihood of suit entirely. Other clients, however, may be less risk-averse; his lawyer will be doing her job when she, as Holmes directs, predicts if her client will be made to suffer by judgment of the court. All of this comes down to a lawyer’s ability to predict, the key element in Holmes’s piece. Without the paramount assets of foresight and sound judgment, she will be hard pressed to deliver on her client’s goal, whatever it may be.

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