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The practice of law in the post-enlightenment period (in the midst of a pandemic)


Client A has just called and asked if he can request Employee 70, who happens to be 70 years old and firmly within the at-risk group of people for the COVID-19 virus, not to come work for fear that he might contract the dreaded disease. My interpretation of Client A’s question is: will he be liable to Employee 70 at some later date on a claim for age discrimination? In these crazy times, the answer to this question may be more philosophical than one might expect. Let me explain.

I don’t profess to be a legal historian, a student of philosophy or a master of the Constitution. In fact, I joke with my law school friends that I spent most of my Con Law semester trying not to have that blank stare on my face that would lead our professor to call on me for the sake of his own entertainment. And I’m not sure what even got me thinking about this subject. But for some reason my mind wandered into this internal morass that caused me to consider what it means to practice law in a post-enlightenment world.

Let me begin with my very rudimentary understanding of the Age of Enlightenment from the one philosophy class I took in college. This philosophy, largely credited to the French and English scholars of the mid-18th Century, focused on rational thinking, the scientific method and independent reason. And why is that important to us as practitioners in the American legal system? Because, as many of you know, these concepts influenced James Madison, the Father of our Constitution, which forms the underpinnings of our system of jurisprudence.

And as I write that, it returns to me why my mind headed down this unworn path of my brain. Like so many of you, I frequently field calls from potential clients or existing clients with fresh legal dilemmas asking me to assess their chances of succeeding in a lawsuit. “What do you think are my chances of winning this [insert employment, contract, business] case?” The question is posed with an underlying assumption that I can dump the limited, and often one-sided, set of facts into some legal algorithm that spits out an empirical solution to the inquiry, much like a Google inquiry.

As much as Locke, Kant, Rousseau, or Madison would have liked, what I have learned since my mind recovered from that intellectual beating it took in law school and through the actual practice of law is that answers to these questions are rarely easily solved solely through rational thinking. Instead, they require intuition, creativity and emotional intelligence, not exactly tenets of enlightened thought.

All of this causes me to consider where we are on the philosophical arch and how that position relates to our practice of law. According to at least some observers, we are in the era of Post-Modernism. And what does that mean, other than a period following Modernism?  Borrowing from that great source of philosophical thought, Wikipedia, Post-Modernism “denies the existence of a universal, stable truth” and other similar thinking that arose during the Age of Enlightenment.

Let me pause here before someone exposes the numerous flaws in my understanding of philosophy, its interpretation, or the impact of such thinking on our legal system. This discussion of philosophy is mostly intended to serve as a framework for where I am headed next. “And where is that?” you ask. To try to understand how we should analyze objective legal questions presented to us by our clients in some meaningful way that doesn’t seem like a dodge but that seeks to provide constructive feedback that allows our clients to make informed decisions regarding whether to pursue litigation or other important business decisions.

This doesn’t mean there’s no place for enlightened thinking in modern legal analysis. The basic questions of contract liability—offer, acceptance, consideration and damage—obviously lend themselves to reasoned analysis. Likewise, statutory interpretation involves reason, language analysis and objectivity. But these are rarely the types of nuanced questions presented to us by our clients. If it were that easy, most of them would have already found the answer on the internet (and maybe some of them even have, or at least think they have).

Of course, I am not arguing for the complete rejection of reason, nor am I calling for the wholesale adoption of many of the principles of Post-Modernism. Rather, I am suggesting that lawyers consider such things as subjectivity and relativism in analyzing legal problems presented to them. Lost yet?  Let me give some examples.

Returning to the question that started all of this, under Title VII the first part of the analysis is clear. Is there an adverse action by Client A and is Employee 70 in a protected category? Yes. Client A is clearly trying to impose different terms of employment for Employee 70 who is in a protected category because he is over age 40. The question then becomes can Client A articulate some “legitimate, nondiscriminatory reason” for the disparate treatment of Employee 70? And with that, let the debate (one which is likely going to consume many an employer in the coming months) begin.

Answering the question requires more than reason, logical thinking and a scientific approach. It requires consideration of human emotion and moral relativism. Would a jury, months or longer from today, consider the circumstances under which the employment decision was made—at the time of this writing our country is preparing to shelter in place and for unemployment at previously unimaginable rates—in determining whether Client A has a legitimate, non-discriminatory reason for asking Employee 70 not to report to work? Will employers be viewed as the heroes or the villains when this storm passes?

Likewise, Client B asks whether he would be liable should someone visit his retail establishment and contract COVID-19 if the government has not ordered a closure of his business. Elements of any tort are, of course, subject to rational thinking. Duty, breach, causation and injury.  Again, would a jury consider the circumstances? Will there be compassion for a small business trying to stay open in order to pay his employees? Will society review the reaction of the business community as reasonable under the circumstances given the scale of the crisis?

Answering these questions, while invoking logic and rational thinking, will also require intuition, emotional intelligence, social psychology, behavioral economics, and some amount of guesswork. Be clear, I am not arguing that lawyers abandon rational thinking. Instead, I am suggesting we employ our full set of tools available to us to assist our clients to chart the best path forward when logic and reason may not provide a precise answer. For me, the struggle is then how to communicate this subjective analysis in relatively objective terms so that our clients can effectively analyze their risk. But we’ll save that for the next class.

Marc Gustafson is a partner at Bell, Davis & Pitt in Charlotte. His practice focuses on complex commercial and employment litigation. Marc is also a certified mediator.

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