September 01, 2011

Cramming Cases into Existing Tests

Our courts have created all sorts of tests. What should a lawyer do when a test has become obsolete and stands in the way of a client?

Alan L. Farkas

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I once had the privilege of representing a woman who was vying for the heart of a prince—Prince Charming, to be precise. My client was quite the prize by every standard: bright, chaste, well educated, well mannered, fashionable, a great conversationalist, vivacious, and gorgeous. Prince Charming, however, made it known that to win his hand, his mate had to fit into a very particular glass slipper. This presented quite a dilemma for my client and me. Despite all the qualities that would make her a great wife, princess, mother, and queen, her feet were a bit on the large side. So, we asked ourselves, should we argue against the prince’s test and attempt to convince him that he shouldn’t be focusing on my client’s feet, or should we attempt to convince the good prince that the shoe did indeed fit (despite the folds of skin spilling over the shoe)? We knew that the prince took his test very seriously, and, as far as he was concerned, that was the only pathway to his heart. So, of course, we went in for the fitting and tried to persuade the prince that the glass slipper must have been a perfect fit the night of the ball (without admitting or denying that my client did or did not in fact dance with the prince that night), but with the weather having cooled and contracted the glass a bit since then, the shoe was naturally a bit tighter now. She later married a blacksmith and invited me to the wedding.

More recently, I took on the unusual case of a woman who spun her wool a bit too fine and soon found herself accused of practicing witchcraft. Well, I wasn’t about to take the chance on what would happen if we submitted her to the prescribed trial by ordeal in which her innocence would be revealed once she drowned. So, I gathered the greatest legal minds of the day, and we crafted a powerful argument against subjecting our client to the dunk tank. We submitted to the tribunal that, under some yet to be accepted standards, there was insufficient basis to pursue this witch trial as we championed all of the non-witch-like qualities of our client. Predictably, we were met with the retort “If she isn’t a witch, what are you so afraid of?” And with that, our client was left to her fate.

Clearly, there is a risk when you take on a well-entrenched test, but our client (subsequently declared innocent, by the way) had much to lose. Still, there is yet another risk for my client’s fate and my integrity when I am faced with a test that forces me to argue the importance of facts remotely relevant to the issue but required under the established test.

This same dynamic is happening every day in our courtrooms.

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