I Don’t Know
The legal profession attracts a lot of people who like to seem smart and in control. And yet a big part of being a litigator is becoming comfortable with saying “I don’t know.”
I say it a lot in my work, and I advise clients about when it is appropriate for them to say it, too. It’s an awkward thing to say, because in regular conversation, it’s acceptable to guess or to say things you believe but don’t absolutely know to be true. But when giving legal advice or in legal proceedings, people need to know that when their lawyer says something, it’s correct. And that’s why litigators often say “I don’t know” until they can be sure what they’re saying is true.
Why should you continue to read this post about disclosing uncertainty?
You’d like to know why you’re paying high hourly rates to someone that doesn’t seem to know anything
You’re interested in epistemology generally
I don’t know
I Don’t Know in Legal Discussions
There are many types of lawyers who advise clients about the law in a particular field. For example, a real estate lawyer may know offhand what the requirements are for transferring title to a piece of land or an election lawyer may know what documents need to be filed to legally raise money for a campaign.
But the focus of a litigator’s practice is often not to advise clients how to comply with the law in the future, but whether an action in the past violated a legal obligation. And in many situations, virtually no litigator can say with confidence how the law applies to a dispute without a detailed study of various contracts and laws that govern the relationships between the relevant parties.
So when clients present me with a situation and ask me what the law permits them to do, my answer is often “I don’t know.” Even though I know basic contract principles, a review of case law may reveal that courts interpret similar provisions differently than I would have expected. Often there is no one legal decision that is directly on point, and I cannot definitively say what the law is because courts are unpredictable (note to self: a good name for a podcast?). And the first read of a complicated contract often misses details that are not apparent.
Even though I say “I don’t know” to questions at first, I usually also say, “but I can find out.” Legal research and studying documents can lead to solid advice, even if there is no absolutely certain answer to a client’s question.
I Don’t Know in Legal Documents
I discussed in earlier posts the role that complaints and answers play in litigation. In those documents, litigants set forth allegations and state whether they admit or deny them.
But attorneys cannot sign complaints unless they have some reason to believe the allegations in them are true. For example, Federal Rule of Civil Procedure 11(b)(3) requires an attorney to perform “an inquiry reasonable under the circumstances” when making representations to the court that “the factual contentions have evidentiary support.” If attorneys make allegations without that support, there are rules that require them to admit that, such as by saying the allegation is only “upon information and belief.”
Similarly, attorneys may admit or deny allegations in answers, or state (pursuant to rules like Federal Rule of Civil Procedure 8(b)(5)) that the defendant lacks “information sufficient to form a belief about the truth of an allegation.”
Complaints and answers are not the only documents that require this precision about what an attorney knows or does not know. As a result, lawyers often phrase their statements very carefully to make sure that they can prove the statements are true, if necessary.
I find this practice keeps me humble. Many people are tempted to believe they know things because they are likely to be true or conform to their understanding of how events transpire. But I have accepted that my understanding of the facts, especially early in a case, is limited and I should not be confident when discussing factual issues unless I have seen persuasive evidence with my own eyes. This is why even on this blog, when I discuss what other people do, I use adverbs like “often” and “generally,” in recognition that not everyone acts the way I think or see personally.
I Don’t Know on the Witness Stand
One challenge I see in preparing to testify at a deposition or a trial is the tendency people have to say things are true when they are actually not sure. In regular conversation, there is no real consequence for being wrong about trivial matters like what the first day of your job was or whether you read a particular email. And in regular conversation, it is awkward to say “I don’t know” in response to basic questions. But in litigation, testimony is studied and parsed in legal documents, so it is important to get it right.
I ask witnesses who will testify under oath to imagine they are signing a legal document that says something is true every time they testify to a fact. So if a witness is asked “When did you wake up?” then the answer should be “I don’t know” unless the witness is willing to sign a legal document to that effect. The result should be that a witness will say “I don’t know” more often than she would in normal conversation, but only so that she testifies honestly about the facts she knows.