The Public Counts

If you want to know what it's like to be a lawyer or what the day to day practice of law is like, do not watch any tv show or movie about the profession. If tv shows were some accurate barometer of the form or nature of my practice, I would expect to make about ten times as much money as I do, have a much bigger home, a much nicer office with wood floors and lots of old books and a dowdy but reliable secretary who was always there to save the day and me from my own follies. Oh, and I would always win.

I will say, though, that tv and movies do seem to tacitly capture one aspect of the law that gets overlooked a lot and is rarely at the forefront of any case: public policy. As I hope I have made clear to you over the last few months, the law is rife with technicalities and specifics. Legal disputes are veritable minefields where a misstep could spell disaster. In the movies and on tv, truth, justice and the American way always seem to take the day.

But the law doesn't operate in a vacuum. It is not a cold computer, applying uncolored facts to a legal standard and filtering it through a jury for approval to reach a result- just or unjust. Believe it or not, the law honors this concept of public policy.

The American Heritage Dictionary defines public policy as "The basic policy or set of policies forming the foundation of public laws, especially such policy not yet formally enunciated." It's an undercurrent in the thinking of the people, the recognized norms, goals and desirable mores of our society.

And, as much as a I tell you there are set guidelines for things or technicalities and exceptions that have to be respected, the legal system acknowledges and follows the public policy. Sometimes it does so tacitly, other times it does so expressly. Our common law, or the law that evolves by decisions rendered in the courts, is all about the tacit recognition of public policy. Judges, juries, witnesses, everyone - they all bring to the process their values, judgments, ideas and beliefs about the world at large. These undoubtedly influence the process and the decisions that are ultimately rendered.

On the other hand, when the courts are asked to simply act equitably because there is no legal remedy for a particular problem, the courts want express assurances that their actions are in line with public policy. For example, if I apply to the court for an injunction, I must affirmatively prove that the issuance of the injunction will not disserve public policy.

So, whether you believe it or not, your set of values, ideas and beliefs is part of a greater idea that very much shapes the law and the decisions rendered by our courts.

Have a great weekend.