Forests Sourcebook - HCV Resource Network

Box 5.13
Working on the Law with Lawyers
Team leaders unaccustomed to working on laws with
lawyers may wonder what to expect. Here are a few notes
based on project experience.
Legal projects often require more than one lawyer
because projects cross legal disciplines. A national consultant
typically supplies essential knowledge of the existing
national legal framework, while an international consultant
brings knowledge of other areas, such as international
standards, approaches to forest law reform, or legislative
drafting.
Plan to give the lawyers some time to build working relationships
with each other and with the team. The international
consultant will need to learn about the existing
national legal framework. The national consultant may need
to learn about forest law. Both will need to gain a full grasp
of the local forest context and the policy that the team is
advocating that the government adopt.
Some team leaders worry whether lawyers will work
well with technical advisers. Usually this is not a problem.
The lawyer’s role in society is to bridge people and the law,
and to do that, the lawyer must be able to work with others
on their own terms.
Still, technical advisers may find the process of legal
reform to be novel and challenging. Just as writing a technical
paper requires the writer to come to terms with the
exact ideas that the writer wants to convey, writing a law
requires the policy maker to come to terms with exactly
what the policy means. Writing a law demands detailed
consideration of practicalities and processes that might be
glossed over in discussing the broader outlines of a policy.
Also, the law may require technical advisers to learn
new terms and use old terms in new ways. A common
example is the word “forest.” To the forester, this may
mean land bearing or capable of bearing tree cover.
Strangely, the scientific definition may have little utility in
the law, which might define forests in terms of land that
the government has reserved or has placed in a particular
class in a cadastral survey. In the end, these definitions are
just tools for the accomplishment of particular tasks, and
each task calls for the appropriate tool. The task of scientific
forest management calls for the science-based definition,
whereas efficient governance calls for the administratively
derived definition.
Technical advisers may find legal language complex or
awkward. At times, a legal drafter will sacrifice clarity in
pursuit of precision. A good lawyer, with enough time, can
be simple, clear, and precise. A lawyer faced with deadlines,
or one who needs to follow old, complex phrasing to
ensure that the local courts will interpret the new words
like the old, may fall short of the ideal. Lawyers can be particular
about language—words are their stock and trade.
During training and practice, a lawyer encounters dozens
or even hundreds of examples of inadvisably chosen words
leading to legal disputes. Do not be surprised if a lawyer
heavily edits any nonlawyer’s attempts at legal drafting or
if the lawyer suggests to others that they simply explain the
policy more fully and leave the legal drafting to the
lawyers.
Finally, some scientifically trained advisers are taken
aback by the way lawyers think:
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A scientist is trained to look for truth, derived from
objective facts. A lawyer is trained to advocate for what
is good, often influenced by subjective values. Any
practical adviser knows that good policy requires consideration
of both facts and values. But the lawyer’s
focus on what is good can sometimes make the lawyer
seem callous to the facts, just as a scientist’s focus on
what is true can sometimes make the scientist seem
callous to human values.
A scientist is taught to see the world through a lens of
logic: induction and deduction. A lawyer is taught
logic but also learns that law grows out of history:
from precedent, politics, and practical experience. In
fact, to the law, sometimes “a page of history is worth
a volume of logic.” a
A scientist is taught to look for the mean: the average
or expected. A lawyer is taught to think about the outliers:
the criminal in society, the loophole in the law,
the rare contingency that the law must anticipate, a
precedent that might be set.
A scientist sees proof as a matter of statistics. That
which, 19 times out of 20, cannot be the result of
chance alone is considered a significant event. A lawyer
sees proof as a function of legal context. Some things
may be presumed true before knowing any facts; some
may be taken as true if they are more likely than not;
some may only be considered true if they cannot reasonably
be considered false.
These disciplinary differences are usually not as daunting
as the cultural differences that project teams must bridge. As
with cultural differences, the key is to be aware of your own
practices and to be open to the practices of others.
Source: Rosenbaum 2006.
a. United States Supreme Court Justice Oliver Wendell Holmes, Jr., writing the opinion of the Court in New York Trust Co. v.
Eisner, 256 U.S. 345, 345 (1921).
NOTE 5.3: STRENGTHENING LEGAL FRAMEWORKS IN THE FOREST SECTOR 175