5

Bob and Rob debate a question of law and do not agree. There isn't any material dispute between them to go to court about. They just want to find out what the legal truth is / who is right and who is wrong.

They can ask the question on this site and get a convincing answer but, should any of them later act in reliance on that answer and end up in a legal trouble, the answerer won't be liable. They both want an answer they can reasonably trust, and random people on the Internet just fall short of this requirement — no matter how seemingly reputable they are. Bob and Rob could even be debating just any good question from this site which one reputable member answers "Yes", another "No" — for example to kill time in COVID-19 lockdown.

They decide to bet. They are happy to pay to have their dispute resolved by an authoritative source (e.g. a lawyer, or a court of law).

How can they do that?

If any of them hires a lawyer, that lawyer will be protecting the interests of their client and therefore could potentially be biased to produce resolution that favours their client (lets them win the bet).

Can they jointly hire a lawyer? Are there any other solutions?

  • Once they've made the bet they have a contract and there is a material dispute, so one of them can sue the other. Although come to think of it they would each have to sue each other, and its possible that the judges in the two cases would come to opposite conclusions. – Paul Johnson Apr 19 at 10:21
  • @PaulJohnson The contract would be that whoever is wrong does something (e.g. delivers a box of beer to the table). What's the material dispute? What to sue about? They both are ready to fulfil their contract obligations — just need to find out who is right and who is wrong. – Greendrake Apr 19 at 10:33
  • Bob would argue that Rob is wrong, and therefore owes the money, but is refusing to pay. – Paul Johnson Apr 19 at 13:37
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    @PaulJohnson A bet contract needs to specify how to find out who is right. Before that finding is executed, noone owes anything to anyone. That's what the court would say if Bob tried to sue Rob like you say. – Greendrake Apr 19 at 14:34
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    You question seems to rely on the premise that it is possible to be certain as to the outcome of a legal question, and also that there exists a lawyer who would warrant the absolute truthiness of his legal conclusions. Does that distill out your central questions? – user6726 Apr 19 at 15:26
12

You can jointly hire a lawyer

Yes, they can jointly hire a lawyer, coming at the lawyer essentially as one single entity: a partnership. The lawyer will research both sides of the question, and give the partnership a fair report. The fee you pay may not deliver to one definitive answer, but it'll discuss all the likely angles.

However, if one of them needs a lawyer in an action against the other, that jointly hired lawyer will be "conflicted out". So Bob should

  • identify the best lawyer in town in that particular area of practice, and retain that lawyer privately without telling Rob.
  • Then, identify the second best lawyer in town, and recommend to Rob to use that lawyer for the "joint" lawyer.
  • Now, when we come down to Bob vs Rob, Bob has the best lawyer, and Rob's is third best.

Facts and circumstances will decide the matter

The biggest problem with floating a hypothetical question is that the actual facts and circumstances in your genuine flesh-and-blood case are likely to be different. Understand that litigants are especially stupid about this. There's a huge bias to believe matter X is relevant/on-point to their own case, when a neutral judge may not see it that way at all.

Likewise, there's a huge bias toward presenting your hypothetical in flattering terms, on the hopes of getting a more favorable ruling. Then, when the real case comes up, the facts and circumstances differ too much, and the judge says "these facts don't fit your declaratory judgment". And now it's a new ballgame.

Your best bet, in areas of doubt, is to obtain legal advice and pay heed to it.

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    "Partnership" is the key word I should have thought about. Cheers. – Greendrake Apr 20 at 12:46
9

How to resolve a bet on a question of law? should any of them later act in reliance on that answer and end up in a legal trouble, the answerer won't be liable.

If said act[ion] in reliance on the answer is about a potential matter to which Bob and Rob would be the parties, Bob or Rob could consider filing suit for declaratory relief. The decision(s) in that case would determine ex-ante the parties' rights or award if the issue materializes in the future.

Hiring some lawyer to decide the question of law is futile because the lawyer's conclusions are neither binding nor something that could be reviewed on appeal. Furthermore, there is the very realistic possibility that the lawyer himself might be clueless on that question of law. Oftentimes judges can --and happen to-- be clueless as well, but (1) the binding component leads to what is known as the law of the case of Bob vs. Rob, and (2) the decision may be appealed.

Bob and Rob could resort to arbitration to have the dispute decided. This would be the midpoint between just hiring some lawyer and pursuing a declaratory judgment in that the decision in arbitration would be binding.

The problem with arbitration is that judicial review would be unavailable even for questions of law, and even if the parties explicitly agree to preserve the right to appeal questions of law. This means that the arbitrator's decision could depart from the legal truth and yet be irreversible.

For instance, HL 1, LLC v. Riverwalk LLC, 15 A.3d 725, 732 (2011) points out that both Federal Arbitration Act and Maine Uniform Arbitration Act list exclusive grounds for vacating arbitration, and the appeal of any question of law is not among those grounds ("[t]he Court held that the FAA provided exclusive grounds for vacating arbitration awards and that those grounds may not by supplemented by contract").

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    Do courts of law actually make ex-ante decisions anywhere? DaleM points that they do not resolve hypotheticals: "almost the first decision of the US Supreme Court was that it wouldn’t tell Congress if the law they were contemplating was constitutional". Also, does this answer essentially not stand if the matter between Bob and Rob is not even potential at all but simply a good question picked up from this site that they debate to kill time in covid lockdown? – Greendrake Apr 20 at 0:28
  • @Greendrake "Do courts of law actually make ex-ante decisions anywhere?" That is exactly the purpose of declaratory judgments: legally binding preventive adjudication. The 2nd follow up question is a non-sequitur: The arising of liabilities contradicts the premise that "the matter between Bob and Rob is not even potential at all. Regardless, applying in a real situation the conclusion someone came up with during an unrelated debate merely intended to kill time constitutes unreasonable reliance, and as such it cannot be remedied. – Iñaki Viggers Apr 20 at 11:38
  • Whereas the matter between them is not potential, either of them would use the knowledge obtained from the authoritative source in any future matters with any other parties where material circumstances are the same. Barring any changes in law that time may bring, I can't see why they can't expect the source to take responsibility for its advice. Simply put, if a lawyer or court A tell me that doing X is legal, I later do exactly X and get punished, I would expect A to share the blame at least, if not take it wholly. – Greendrake Apr 20 at 11:58
  • @Greendrake "I can't see why they can't expect the source to take responsibility for its advice." In the case of a judge, because of the disastrous doctrine of judicial immunity; of an arbitrator, because the scope of arbitrator's conclusions is limited to the specific debate between Bob & Rob only; and of anyone else, because his or her conclusions of law are not binding at all (otherwise every law school graduate could sue his professors whenever he loses a case), and the relation between Bob/Rob and the adviser would typically fall short of establishing a fiduciary duty. – Iñaki Viggers Apr 20 at 12:29
  • Judges create case law which is binding on inferior courts; in this sense judges are responsible as far as Bob&Rob are concerned as they can always defend their actions by the case law. Professors can't be sued for what they teach indeed, but lawyers do have liability for their advice don't they? – Greendrake Apr 20 at 12:31
3

"Agreement" is probably the first step: over what constitutes an authoritative source. As you allude, courts are authoritative, though access is limited to appropriately injured parties. Otherwise the court's opinion would be "advisory," which is typically proscribed.

You might consider paralleling the structure often used for factual resolution of insurance contracts. For example, if one is trying to determine the extent of hail damage from a storm, each party may be entitled to an appraiser's opinion. If the appraisers disagree, then they—not the parties—choose a third appraiser to "adjudicate" the disagreement. That expert's opinion is binding.

In your situation, if you could agree to abide by the decision of a suitably authoritative expert, you could skip the first layer of disagreeing, adversarial experts.

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  • It's hard to imagine that an "authoritative expert" could be anyone but a lawyer. Hired lawyers have limited room for manoeuvre because of rules of client care/conduct. Are you essentially talking about hiring a lawyer jointly? Is this even possible? Will a lawyer be allowed to resolve a bet like this by telling both Bob and Rob what the "legal truth" is? – Greendrake Apr 19 at 11:47
  • Maybe the details are otherwise, but it's hard to see how a bet situation would generate the standing required for declaratory judgment (if that's a thing in your jurisdiction). If it does, then maybe that's an answer. But this answer suggests resolving via private law: you agree to bind yourself to the decision, and the contract creates its own enforceability. Whether a lawyer could jointly represent you depends on the jurisdiction. – Pat W. Apr 19 at 11:56
  • @Greendrake "It's hard to imagine that an "authoritative expert" could be anyone but a lawyer" - What about a professor of law, perceived to be expert in the particular topic? – Lag Apr 19 at 12:24
  • @Lag As I understand it, such a professor would be breaking the law by giving legal advice without registration as a lawyer. – Greendrake Apr 19 at 12:41
  • @Greendrake Oh, I didn't understand the scenario as a requirement for legal advice. – Lag Apr 19 at 12:43
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The philosophy stack is available

That’s the forum for finding the truth. Here we deal with the law.

If there is no dispute there is no legal question to be resolved. Bob and Rob can each follow the law as they believe it to be. If and when this leads to a legal dispute (between them or with a third party) the courts are available to resolve that dispute. That may or may not resolve the issue of law - if the particular dispute can be resolved without that, so much the better because the judiciary prefers to leave lawmaking to the legislature when they can.

Law is a practical discipline - the search for certainty belongs to philosophy or the sciences. Lawyers, engineers and doctors don’t care about the truth - they just want what works.

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    I specifically wrote "legal truth" and not just "truth" in the hope to preclude this kind of answer. "Is there contract or not?" That's a question of law. One answer will be truth, the other will be false. Without any philosophy. – Greendrake Apr 19 at 9:07
  • @Greendrake I disagree - on the facts of one case there is a contract, on the facts of an almost identical set of facts in a different time and place, there isn’t. That’s the truth of law. – Dale M Apr 19 at 11:19
  • Okay. What if they bet on something like "is murdering people illegal?". Bob says yes, Rob says no. Kind of exaggerated example but you get the idea. – Greendrake Apr 19 at 11:23
  • @Greendrake why do you think a court is interested in resolving a bet? Your example is poor because murder is illegal by definition- if the killing isn’t unlawful it isn’t murder. I understand what you are trying to say but courts do not resolve hypotheticals (at least in common law jurisdictions) - indeed, almost the first decision of the US Supreme Court was that it wouldn’t tell Congress if the law they were contemplating was constitutional. Now, if Bob and Rob can turn this into a real dispute - game on but it will be played by the rules of the court. – Dale M Apr 19 at 11:27
  • If courts were interested in resolving bets (and I knew that) I wouldn't be asking this question. But you now sound like the actual answer is "no way" which I would accept if it was saying that directly. The question Bob and Rob debate could in fact be any good question from this site, like whether something is legal. As it often happens, someone will answer yes, someone no. So Bob and Rob just need someone they both trust to say yes or no. But they perhaps won't trust anyone unless that person takes responsibility for the answer. – Greendrake Apr 19 at 14:59
0

Your question contradicts itself:

They just want to find out what the legal truth is / who is right and who is wrong.

Here you have said that the primary interest of each party is to know the truth.

If any of them hires a lawyer, that lawyer will be protecting the interests of their client and therefore could potentially be biased to produce resolution that favours their client (lets them win the bet).

Here you have said that the primary interest of at least one of the parties is to win the bet.

It is not possible for both of these things to be true. If the first thing you said is true, there is no problem. Either party can hire the lawyer. The lawyer would be betraying his client's interests if he slanted his advice so his party would win the bet since that is not the client's primary interest.

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  • I don't see any contradiction between the desire to be right (which would be proven by winning the bet) and readiness to accept being wrong. Taking chance to fulfil that desire is inevitably dependent on finding out the truth, which is why they want it. Whoever tells the truth needs to be impartial, so noone can hire their own lawyer. – Greendrake Apr 20 at 22:30
  • Your response is also contradictory. Does each party want an unbiased answer or do they want to win the bet? It can't be both. If each party wants an impartial answer, then a party bound to do what either party wants would be impartial. – David Schwartz Apr 20 at 22:57
  • "It can't be both." — well, I say it can. Perhaps it boils down to the readiness to eventually accept that 2*2=4 when for whatever reason you are sure it equals 5. Having your own point (and willing it to be true so that your ego is happy) does not necessarily eliminate being happy to realise that you were wrong (and getting your ego stuffed). – Greendrake Apr 20 at 23:21
  • @Greendrake Is this statement, from your hypothetical, true: "They just want to find out what the legal truth is / who is right and who is wrong."? You said it. You set up the hypothetical with this statement. Is it true? – David Schwartz Apr 20 at 23:24
  • It is true. You just need to bear mind why they want it — because each of them already has an opinion of what the truth is, and they don't match, and both are so sure they are right so that they want to bet. – Greendrake Apr 20 at 23:38
-2

It is false to think that one has to be right and the other has to be wrong.

Law is in the eye of the beholder. What's written by the legislature is not a done deal. It has to be interpreted by judges, many times in actual cases to really know what it means (how it will be applied) and whether Bob or Rob is right. And that's assuming they're not both wrong, lest you forget that possibility.

This subjectivity is all the more so the case if the disagreement between the two is based on some very technical nuance, perhaps a contested political one.

If they both hire the same lawyer, the lawyer can give his best opinion in good faith. But that doesn't mean the lawyer is right.

There is no right in law.

Written law is not completely deterministic. Your results will legally depend on discretion of a police officer, district attorney, judge, and potentially jury.

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    Sorry but this sounds like pure demagogy. I agree that law is not deterministic. Still, right and wrong answers do exist. "Is it a crime to randomly and intentionally kill people?". This is a question of law, no matter how stupid it sounds. The right answer is "Yes, it is. The crime is called murder". The wrong answer is "No, you can do it any time". – Greendrake Apr 20 at 2:42
  • ......Unless you find yourself surrounded by people who have all demonstrated a direct and willful intent to end your life, like an angrier than normal angry mob. Then you can kill them all intentionally and as randomly as you like.... In most states of the USA..... But an example that clear is not one that Rob and Bob would be arguing about now is it. – Billy C. Apr 20 at 2:49
  • I guess you could conduct a survey of the supreme court justices on the matter? In writing. At a time that there is an odd number of them currently appointed. But you're not likely to find more than a couple who would be bothered over something so trivial. And even then, they have a habit of dying, and things change when their replacements have a different opinion. And by the way there's been times where the 9 of them can not form a single majority opinion (They can split 3 or more ways) – Billy C. Apr 20 at 2:53
  • @BillyC. as to your comment: Killing members of an angrier-than-normal-angry-mob isn't that random, is it? The selection pattern is still well defined. - So you are left with "intentionally". – I'm with Monica Apr 20 at 8:41

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