Challenging “bad” law can make good and bad waves

Nick Augustine is the principal of Pro Serve PR Marketing, a firm that provides services, consulting and advising to law firms on marketing and publicity strategies. Nick enjoys sharing career growth, strategy and experience with legal job seekers and attorneys in transition. Nick works with attorneys in transition and counsels individuals at all stages of their careers.

Challenging “bad” law is the quickest way to earn your colleagues’ praise or eye rolls. Think back to the legal writing class and recall learning about statutory drafting and the process of drafting and applying legislation. I recall a provision, in the fictitious State of Marshall, involving what amounted to an unconstitutional statute regarding “dangerous pets.” We learned to spot the issues where application of the law would frustrate its purpose and was otherwise vague, overbroad and unconstitutional. Think about existing laws that are equally difficult.

A lawyer can read, interpret, and advise and practice around current laws. A good lawyer can spot a bad law or one in need of modification. Two things I learned over time: (1) sometimes best intentions miss the mark, and (2) human error reflects events and trends.

The partner managing a law firm will likely want to hire a good lawyer who can spot bad law. What you do with your opposition of the suspect law is what makes you an asset or a liability.

If your experience and intuition suggest a statute or controlling decision is wrong or no longer satisfies its intended purpose, it makes sense to do some research and develop a reasoned opinion.

  1. Start with legislative history and comments. What was the policy basis for the law’s enactment?
  2. Search archive news to consider events and conditions existing when the law was passed.
  3. Evaluate whether current conditions satisfy or frustrate the purpose of the law.
  4. Develop strategies to engage others in debate about the law’s status and current application.
  5. If appropriate, lobby for change with concern for the opposition and impact of change.
  6. Keep copious notes of your process for your own and others’ benefit in the academic exercise.
  7. Follow money, power and interests and execute your plan by engaging influential supporters.

If you attack “bad” law without doing your homework you can look like a half-cocked renegade and people might look at you and think, “Hmm, good intentions…but, s/he should have done more research before launching a naive attack…”

The most valuable lawyers are skilled at balancing competing interests and know when to hold ‘em and when to fold ‘em – this applies to the review and challenge of laws that no longer satisfy their purpose. Times change and so should the law, at times, and you can be the one to make it happen.

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