Wednesday, September 13, 2006

"But I thought . . . " Macon called us last night and we had a good talk. Something he said made me consider the matter of "assuming". When I left the world of family and academia to commence my first summer of "real world" experience after my first year of law school, clerking for a fine lawyer in Raleigh, I entered a world where one simply could not make assumptions supported by someone else's word, at least not on the important stuff. I learned that lesson that summer and had to learn it again and again as I entered the regular practice of law three years later and began to grow in that profession.

People will lie to you. People will lie to people who would not lie to you, but who will pass along the lie unwittingly to you. You cannot challenge every fact that you would like to "assume", but you have to learn which ones are so important that you have to examine them carefully, independently, with a suitably jaundiced eye. Along the way, there are short cuts. For example, you learn to rely on people who are straight with you and are just as careful with assumptions. But you have to be so careful about whom you rely upon.

The way to succeed, of course, is to be one of those people upon whom others can rely, a person whose word is gold, who is "reliable". Never pass along a "fact" without being sure it is correct. That's why lawyers hedge so much. It's not that we are being deceitful. We know that someone is going to rely on our opinions, so we want to be sure that our clients understand just what it is that we are saying. Among the most important part of our opinion is our statement of "the facts". That is where we are very careful to identify those facts upon which we rely, to say where we got them (usually the client himself), and to qualify our opinion by indicating that we are proceeding on the assumption that the stated facts are true.

President Bush's reliance on Tenent concerning WMD (if that, indeed, was the real basis of the invasion) is worrisome, because Tenent had already missed 9/11 and was a Clinton administration hold-over. Bush is a good man, I think, and he must rely on others, but I find it worrisome that Tenent's word was so crucial on the decision to invade. In my humble opinion, that was a signal leadership failure on the President's part.

A few years ago, I gave an opinion to a client based upon a subordinate's legal research that I did not check. The associate did not work for me on a regular basis, but did work for a demandning partner. I "assumed" that, if the associate had been able to survive as that partner's researcher, the associate knew what she was doing when it came to the work I needed from her. She did not know what she was doing. I should have gone behind her memorandum of law, but I relied on it in giving my client my opinion on the matter. I came within a whisker of disaster. Poor, poor lawyering on my part but a remarkable instance of God's grace as the bullet came whizzing by and I ducked.

So we need to be careful about making assumptions and about whom we rely upon to give us "the facts".

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