Non-Lawyers Talking About the Law

Scott Greenfield has a post up at Simple Justice talking about how often people get legal advice from sources other than lawyers. I’ll skip to the ending:

The law is hard to understand, hard to navigate and very hard to practice. If you are not a lawyer, you have no business giving legal advice because you don’t know what you’re talking about and someone, somewhere, will be stupid enough to listen to you and be harmed. Don’t do it.

This is something I worry about on Windypundit. I’m not a lawyer, but I write about a lot of subjects that involve legal issues. Almost everything I write about civil liberties involves criminal law in some way. And I occasionally write about issues that touch on immigration law, copyright law, patent law, labor law, and probably a few others. I think I probably know more about some of these areas of law — including criminal law — than the average non-lawyer. But that’s not saying much, so I know I have to be careful not to let a little knowledge become a dangerous thing.

I try to avoid that by limiting my writing to commentary, opinion, criticism, and analysis. I write about what people are doing in the name of the law, and the effects that they have, and whether that is good or bad. (Although if I’m provoked to write about it, it’s probably bad.) However, if I’m talking about something like in rem asset forfeiture, eminent domain abuse, immigration law, or federal cash “structuring” laws, it’s hard to explain the absurdity without going into some detail. But I try to avoid anything that sounds like legal advice, especially in criminal law, and especially in specific situations.

Still, sometimes I find myself tiptoeing really close to the line, or maybe going over it. I think this post on model releases is about as close as I’ve come to giving legal advice. I had just read a couple of books on law for photographers when somebody emailed me a question about it, and I tried to stay on the right side of the line between explaining why people use model releases and advising someone how to handle a legal situation. The only specific piece of advice I gave was that if the photo buyer didn’t like the model release, the photographer could always try asking the model to sign a different one.

That post is also an example of one good thing I have going for me here at Windypundit: Real lawyers read my blog. (In this case, San Diego lawyer Charles Hartley read my post and basically said I didn’t say anything too stupid.) I’m reasonably hopeful that if I ever screw up and give out stupid legal advice, one of my regular lawyer readers will let me know.

Sometimes, I do repeat some very general advice that I have heard from lawyers or read in legal blogs. In particular, on several occasions I’ve repeated Mark Bennett’s million-dollar legal advice: Don’t talk to the police. However, Scott Greenfield isn’t real thrilled about that advice:

Law isn’t easy. It’s confusing, contradictory, spirals out of control and back into focus without warning.  There are a million rules, precepts of interpretation, many of which are distinguished by such fine nuances that there is rampant disagreement within our own ranks.

But non-lawyers demand it be reduced to the lowest common denominator, made simple so they can “get it” in under ten seconds and without being forced to suffer the pain of thinking.  The best example I can come up with is “STFU,” the standard advice on what to do if questioned by police.

It’s Menckian, clear, simple and wrong. There are far worse answers, and it’s not quite a bad answer, but it’s also not the correct answer. And yet it’s been repeated a million times, driven so deep into the consciousness of so many that efforts to provide the correct answer are ignored.

Bennett may not be happy about his own advice either, since he seems to have taken down his original page — although other people have reposted it — and replaced it with more detailed advice.

I mostly write about the law because Windypundit is (among other things) a blog about public policy: What it is, what’s wrong with it, and what we should do about it. The legal system is huge and important and monumentally dangerous, and I think it merits a lot of discussion. So that’s why I write about it, and why I try not to write anything too wrong or stupid.

More than that, however, I think that ordinary people have to talk about the law because we have to live the law. At work, at home, in school, while driving…we are subject to the law all the time, every day, and we have to make decisions about our behavior based on the law. We may not be able to understand the law in full without a legal education and 20 years of experience, but that doesn’t relieve us of the burden of making decisions about things that have legal implications. And because of the way that human brains are wired, that means we have to talk things over with other people.

Ideally, I suppose, those people should be lawyers who are experts at the matter in question, but in practice, expert legal advice is a scarce resource, so we often end up talking to people who aren’t lawyers but who we expect to be better informed than we are.

In areas of law less hazardous than criminal law, this is uncontroversial. If you’re a reporter, you don’t run every story past a defamation lawyer, but you do run them past your editor. If you’re working for a company that provides telephone tech support under a contract, and a customer calls asking for something that you think might be out of scope, you don’t call the company legal department for an interpretation of the contract, you ask your boss. Or if you’re the boss and want to fire someone, you don’t ask an employment lawyer how to do it, you ask someone in Human Resources. Of course, sometimes things go wrong — and I’m sure lawyers in all these areas can tell horror stories — but for the most part, it works well enough.

I don’t know that informal sources of information about criminal law are any worse than informal sources of information about other other kinds of law, but the penalty for mistakes is certainly much higher. And in reference to online videos such as Law Professor James Duane’s famous “don’t talk to police” lecture, Scott is skeptical of the quality:

There are a number of videos around about dealing with the police, and they tend to be far better than most of the non-lawyer advice. Yet, they are still overly-simplistic, occasionally wrong and even slightly dangerous. That’s the best one can do in a mass market video. Whether that’s good enough is another story.

We better hope it’s good enough. Because next time any of us is pulled over, and the cop asks “where are you coming from?” or “do you have any drugs in the car?” or “mind if I take a look?” the only legal advice we’ll have immediately available is what we can remember, and it doesn’t matter how correct, complex, and nuanced a piece of legal advice is if it’s not there in our head when we need it.

I don’t have any answers, and I’m not real sure where I’m going with this, but…maybe when it comes to general legal advice in preparation for hypothetical future situations…maybe getting everything exactly right isn’t as important as making sure that as many people as possible understand a few really important parts.