Building on my prior post about there not really begin any "50-50" cases, the NYTimes interviews a
a physician and molecular biologist who teaches judges about science and genetics:


A. Well, a scientist almost never says anything absolutely. Everything is a theory, to be disproved or adjusted later on. Judges worry a lot about the certainty of conclusions, too. Judges are used to thinking of truth as an elusive concept. A lot of judges, when you bring up “the truth,” they roll their eyes. They say, “I don’t know what to say about truth. I do know about probabilities.”

As I wrote before, "If you can see a wide array of evidence and argument, which it is your sworn duty to evaluate, and yet you remain totally unmoved, then the problem lies with you, not with the inherent unknowability of the world."  I think that is a common ground between science and law, the acceptance that absolute certainty of the rightness of one’s result is neither possible nor necessary.

It’s worth pondering a bit more. Back in law school, I took a number of classes with an extraordinarily intelligent professor who had, among other academic achievements, previously edited a 14 volume hornbook in a particularly dense, broad and complicated legal field. He was recognized by most of his peers as the smartest professor there, and had devoted more brain power to considering the law as a whole than most anyone on earth.

He was also a cynic, dismayed by the ease with which judges would produce inconsistent arguments and wholly irrational theories of law — frequently at odds with their own prior opinions — just to support a particular position in a case before them. So at one point, I asked him, "is anything in the law real, or is all just made up after the fact to justify the decision?"

He answered quickly, "burdens are real. Whatever else is going on, the burdens of production and persuasion tell everyone what they’re supposed to do."

My experience has reinforced that again and again. In the law, the burden of proof is the primary intellectual tool used to resolve cases.if you simply follow headlines, "the law" is generally about policy and political decisions. In most people’s lives, however, the real determinant of their future is not the current policy of "the law" (given how the bulk of the law really hasn’t changed in hundreds, even thousands of years), but whether the party that carries the burden can prove the burden.

Sometimes policy can be life or death, as in the latest Supreme Court child rape decision, which took death off the table. Most of the time, however, life or death is determined by meeting or failing the burden of proof in front of a judge or jury. There is no question that murder is wrong; the question is guilt.

Civil cases are no different. If you do wrong, you are normally responsible to compensate those you injured. That’s not the question; the question is if you did wrong.

I’ve noticed on various "ask a lawyer" type websites that the most common question is whether people can sue over an oral agreement. Legally, that is not a question of all — with the limited exception of the statute of frauds, you can always sue over an oral agreement. The question is if you will satisfy your burden of proof at trial.

The same goes for "science." "Science" in one sense is not a collection of ideas, it is a method for analyzing the natural world. Could we say that "law" is, in analogy, not a collection of rules, but rather a method for analyzing the disputes between persons? We can certainly say that for burdens — they are tools for framing the issues, rather than a rule for what the result should be, just like the scientific method.

What’s the point of such an abstract realization? I think there’s a lot that lawyers can draw from the realm of science to make real, effective changes to their practice. For example, a scientific paper that does not clearly follow the scientific method (hypothesis, method, result, etc.) is usually rejected out of hand —  but how many times have you submitted a brief without clarifying what the standard of review/burden is? How many times have you heard a juror say they "did not know" that the proof of damages was also a preponderance standard?

For another example, how many times have you or opposing counsel relied on an outdated case just because it was in some sort of "legal research" file you’ve been keeping for years? Should you not, like a scientist, re-examine critical issues each time they come up to make sure you know the current thinking?

The point here, initially, is rigor. How rigorous is your practice? Do you have a method? Do you make sure others know what their own method should be when they consider your case?