Meta Ignarance and a Glimmer of Hope

One of the most difficult things about practicing law as a novice is "meta ignorance.” “Ignorance” is the state of not knowing something. Meta ignorance, to the contrary, is not knowing that there is something that you should know, but don’t.

The American system of law is extremely complicated. Part of the reason is that there are so many sources of law - federal and state constitutional law, federal and state case (court made) law, federal and state statutes, federal and state administrative rules, local ordinances, procedural rules, court rules, and so on. This fact makes it extremely likely that there is some point of law that relates to whatever you’re working on that you don’t know about. However, it is one thing to not know the answer to a particular question – that can be easily remedied by research. It is quite another not to know there is a question you should ask.

Most of my mistakes practicing law have arisen from meta-ignorance. This is extremely stressful. When you present work to a firm partner, they expect it to be legally sound. It is very hard to tell a firm partner, “that may or may not be true, I didn’t think to research that issue.” Only one firm partner has ever responded to this excuse with “how could you have known?” Most of the time, they expect you to figure out everything you need to know and factor it in. This creates a dilemma. You can sit in your office trying to discern additional relevant legal issues when you have no idea what they might be – and waste valuable time that you can’t bill. Or, you can turn your work in and hope you don’t face the dreaded “what about this issue?”

Well, something just happened that gives me hope regarding this problem. I am about to file a complaint for one of my clients. A complaint is the document that begins a lawsuit. Generally speaking, a complaint consists of the complaint itself, a demand for jury trial, and a summons. I completed each of these documents and was about to send them to my client for review, when something happened indicating that, on at least one point, I transcended meta ignorance to ignorance (and now possess knowledge after doing the research).

Here’s the short story. Our court system goes back to the English court system. The English had multiple court systems. The “Common Law” or legal courts were created when William the Conqueror conquered the British Isles in 1066, and subsequently united all of the King’s legal courts into a “common” judicial system. However, a second system of courts known as the Courts of Chancery (or Courts of Equity) developed as a remedy to the harsh rules and limited remedies available in the legal courts.

The main difference between these systems is that common law courts operated by strict rules of law, which often dictated unjust or harsh results. Courts of equity, on the other hand, could consider equitable as well as legal principles in arriving at their decisions. They could also award a wide array of remedies not available in the common law courts. For example, if a party to contract for the purchase of land backed out (because the value of the land had increased), a common law court could only award money damages, which is a legal remedy. Courts of equity, on the other hand, could award the remedy of “specific performance” and force the sale at the agreed upon price.

America adopted this two court system when our nation was founded. The federal courts, and nearly all state courts, combined their two court systems in the early 1900’s. But both common law remedies and equitable remedies are still available in our courts. You can sue for damages, which is a legal remedy. You can also sue for an injunction, which is an equitable remedy.

Why is this important? My client is suing co-obligors on a contract for equitable contribution – which is an equitable remedy. After completing my complaint, it occurred to me that there might not be a right to a jury trial for purely equitable claims. That was my transition from meta-ignorance to ignorance – it occurred to me to ask a relevant question. Within five minutes, I went from ignorance to knowledge, when I discovered that the right to a jury trial only applies to legal claims.

After getting rid of the demand for a jury trial, I thought, there is a glimmer of hope for me in this business.

Joe H.