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Possession of a Good Lawyer is 9/10ths of the Law

The above saying was emblazoned on a coffee cup on a ledge in the student lounge throughout my years in law school. Shortly after I graduated, the cup disappeared when the lounge was being remodeled. You know, I sorely missed that old cup after it was gone. I was studying for the bar exam at the time and could have dearly used the inspiration.

One reason that using a good lawyer is so important is because law is arcane, diverse, and specialized. Some legal principles go back for centuries. Much of the law of real estate and trusts and estates goes back to the time of Henry VIII. When he wasn’t marrying, beheading or divorcing his wives, King Henry VIII was instrumental in devising or accepting new concepts of property and property law: For example, the concept of equitable interest (i.e. an interest in property outside of or in addition to ownership title).

Much of this law is still in use today, sometimes used favorably, sometimes not. Consider, for example, the idea that a lease is a conveyance, where the tenant has the property “to have and to hold,” with “rights against the whole world except the true owner.” This idea made more sense in the days of leased-land estates than now, especially when applied to condominiums, shopping centers and apartments. Few of us who have ever been tenants feel like we have considerable rights and power. These days, the typical lease is so full of provisions, under which the landlord controls the tenant, that the lease is more like a contract of indentured servitude than of “rights against the world.”

In addition to being arcane and diverse, law is evolving into new areas, such as software technology. Is the sale of software a “good” (i.e., is it something identifiable and moveable at the time of the transaction?). Is it covered by the Uniform Commercial Code (UCC)? It’s not real property (i.e. a building or land). So what is it? As it happened software and data are covered by the UCC. The reason is that there was no other developed body of law at the time. By the time data-oriented model statutes were drafted too many decisions had been made under the Uniform Commercial Code. Similarly, environmental law is a new and independent area of law.

Law evolves to meet the needs of society. For example, although it had existed previously, the modern corporation as a form of business organization did not really take off until the Industrial Revolution. Why? Because society needed a legal concept that would allow the business owner to acquire capital from investors but still protect the investors from unlimited liability. Corporations and corporate law filled this need. As most business owners know, the corporate form of business government allows the separation of management and ownership and limits the liability of the shareholders to the amount invested. Their other personal assets and income are not at risk. Nowadays, the limited liability company (LLC) is a new form of corporate governance. It is a hybrid between a corporation and a partnership.

Again, the point is that the law is ever changing to fit society’s needs. Contrary to the untutored belief, it is definitely not static. Sometimes, it is difficult even for the lawyers to keep up with the changes. These days, few lawyers are “general practitioners.” Most lawyers focus their practice on one area of the law in which they have the most interest, knowledge and experience.

This latter point is important. I have represented attorneys who formerly practiced criminal law, then went into business but had a false understanding of the law of business agreements not to compete. This happened because the attorney had little or no experience in business and employment law. Likewise, some clients have surrendered and failed to protect their legal rights because they did not know that they could not lawfully be fired for reporting Occupational Safety and Health Administration (OSHA) violations.

Hopefully, the reader understands, or is now starting to understand, the need to check out legal matters with the right attorney; that is, one who knows that area of law. The law will not do you much good if you do not know what it is. Or worse, you think you know what the law is but you are wrong. That is a great benefit of using an attorney who practices in that area of law. He will know how the law is changing and how you can take maximum advantage of, or protect yourself, from those changes.

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