How to Think Like a Lawyer--and Why: A Common-Sense Guide to Everyday Dilemmas by Kim Wehle

Author:Kim Wehle [Wehle, Kim]
Language: eng
Format: epub
Tags: Non-Fiction, Self Help, Psychology, Law, Personal Development, Business, Philosophy
ISBN: 9780063067578
Publisher: Harper Paperbacks
Published: 2022-02-22T00:00:00+00:00

– What caused the accident?

– Who was driving the tugboat?

– Was there any underlying problem with the tugboat itself?

– Was there a problem with the barge owned by the B&O Railroad?

– What were the weather conditions on the day of the incident?

– Was any other vessel involved in the accident?

– Did the surviving crew members suffer any injuries?

– How to quantify the financial losses to the families of the deceased?

– Was the tugboat damaged?

These are all questions of fact—what happened on that fateful February day. But Fortenbaugh was pondering questions of law, too, when he first sat down to work on this case. What were the rules that governed tugboat-driven barge crossings? Those rules would dictate who was responsible for the accident and thus for compensating the victims.

We’ve already heard of one such rule: the law of negligence. In this case, people had a duty to exercise reasonable care in preparing barges for transport across a river and in providing a tugboat to aid in that effort. The folks driving the tugboat needed to exercise reasonable care, too. So Fortenbaugh knew that he needed to identify all the potential pitfalls in his clients’ case. Were there any facts suggesting that his clients, the tugboat owners, failed to exercise reasonable care? Because if so, then they might have wound up having to pay out settlements to the deceased crew members’ families or face a high jury verdict, and Fortenbaugh had to strategize around that possibility.

Fortenbaugh would ask the same question of the B&O Railroad. If the facts showed that there was something wrong with the barge, then Fortenbaugh might have been able to point the legal finger at B&O, a third party. In fact, Fortenbaugh might have had grounds to sue B&O for damages to his clients’ tugboat. This wouldn’t necessarily have erased the tugboat owners’ liability to the families, but it could have softened the blow.

So, now we have a set of factual questions and a set of legal questions. The facts will drive how the legal issues resolve, specifically whether the ultimate blame is placed on the tugboat company or someone else. Hopefully, that is evident from our discussion so far.

The next question is: If you were Fortenbaugh, how would you go about gathering facts to find out answers to the questions you identified? Remember, Fortenbaugh needs to know about the harmful facts just as much as he needs to uncover whatever facts are helpful to his clients’ case. A harmful fact might be, for example, that the tugboat was sloppily moored to the sunken barge, rather than to an anchor, which is more secure and thus the better way to moor a tugboat. It turns out that the tugboat operators didn’t sound any alarm overnight, either, which could have drawn assistance for the accident before the sunken barge became dislodged and hit the tugboat. These are the kinds of facts that would have gotten Fortenbaugh to think hard about whether it would have been better for his clients to pay some damages out of court rather than put the sad story before a jury.

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