(c) 2016, Chaim Steinberger, Esq.
Many people think that a judge knows all the laws. That they’re presented with issues, and like the oracle, pronounce the law, correctly, every time, from on up high.
Unfortunately, our society, and the laws that govern us, are too complicated for any one person to know it all. Moreover, each situation is different and, therefore, the different laws that govern it can apply differently. So often, the end result is not a foregone conclusion and depends on which law (or legal theory) governs.
If you need proof of this, pick up an appellate decision in which there is a dissent. Often you’ll read the majority opinion and say to yourself, “Of course. That’s absolutely right.” Now read the dissent and you’ll likely say, “Hey, the dissent’s right.” You’ll be left scratching your head wondering how you could think the diametrically opposite opinions are both right.
Deciding which law controls, is often open to interpretation, and will depend on the theory of the case presented by the lawyers to the fact finder and judge.
Thus, here’s a more sophisticated understanding of the legal system. Ours is an “adversarial” system. That means that my job, as counsel for one party, is to teach the judge everything the judge needs to know to make the “right” decision, i.e., to rule in my client’s favor. The job of my adversary is to teach the judge everything the judge needs to know to make “his” right decision. In such a system, all the judge needs do, is listen carefully to the arguments and factual presentations of both sides, and point to one side or the other and say, “You’re right,” or “you’re right.”
The judge’s “job” therefore, is not to know all the law as if it were an objective truth. Rather it’s my job to learn all of the relevant law and facts, and present them in such a compelling manner that it wins the judge’s heart and mind, and demonstrates that an injustice is about to happen unless the judge rules in my favor. It is my adversaries job to do the same. Then, depending on the facts and circumstance, and whose lawyer is better prepared and better skilled, that wins.