PREDICTABILITY IN THE LAW
"THE LAW," in all of its power and majesty, should be predictable: i.e., in a well-ordered society, citizens ought to know what behavior is forbidden or mandated, and the consequences for deviating from a prescribed course of conduct should be established and accessible. These ideals are rooted in considerations of due process, as enunciated in the fifth and fourteenth amendments of the United States constitution (and echoed in Article 1, Section 7, of Minnesota's constitution). The idea is that one should not be punished for an action that could not have been known beforehand to carry potential sanctions.
Few would argue against the ideals inherent in the above discussion. However, a review of the most recent Minnesota Supreme Court decisions indicates that this ideal may be largely a myth. Between October 12 and October 23, 2006, the court decided six cases. Of those six, three reversed and three affirmed the court of appeals decisions which were under review. Perhaps more significantly, however, these six cases generated a dozen written dissents taking issue with the majority's position. The following analysis, outlining the issues, the cases' procedural history and each outcome may be enlightening.
- A consumer fraud opinion concerning car repairs affirmed the decision of the court of appeals. Justice Page dissented on the basis of the applicability of certain statutory language.
- An opinion generated in a probate matter involving paternity and the Parentage Act reversed the court of appeals, with Justice Gildea, joined by Justice G. Barry Anderson, dissenting.
- A criminal opinion regarding jury instructions reversed the court of appeals, with Justice Page again dissenting. His dissent was joined by Justices Russell Anderson and Paul Anderson.
- Another criminal opinion dealing with the right to counsel affirmed the court of appeals. Justice Paul Anderson dissented, with Justice Hanson joining that dissent but writing separately on additional grounds for parting ways with the majority. Justice Meyer wrote a special concurring opinion in which she endorsed certain points from Justice Hanson's dissent and voiced her disagreement with the majority opinion on precisely stated grounds.
- A case involving the Indian Child Welfare Act and the Minnesota Indian Family Preservation Act resulted in a reversal of the court of appeals and the reinstatement of the district (trial) court's original decision. Justice Page, joined by Justice Paul Anderson, dissented.
- A Civil Damages Act (illegal sale of alcohol) opinion affirmed the court of appeals, but prompted a dissent from Justice Hanson.
Beside the obvious one that finality of a legal dispute can be extremely difficult to achieve, what lessons are to be learned from this survey? If those in whom final decision-making authority is vested cannot reach consensus, it is safe to say that in many cases no one can be certain of the final outcome. Lawyers must therefore be extremely careful about making promises to a client regarding results. In fact, there are many situations in which a lawyer is ethically prohibited from guaranteeing a result.
Some lawyers appreciate their clients' frustration when they consult a lawyer seeking answers, but are told that it is impossible to predict how their legal concerns will be resolved. Nevertheless, clients should be wary of a lawyer who predicts with certainty the outcome. This is particularly so when the issues presented are novel or complex. Perhaps the most a client can realistically expect, at least in the initial stages of most legal disputes, is to gain a greater understanding of the processes by which the matter moves toward resolution, along with a range of potential results.
