The unknown unknowns

Posted Wednesday, March 15th, 2017 by Gregory Forman
Filed under Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

There are known knowns. These are things we know that we know. There are known unknowns. That is to say, there are things that we know we don’t know. But there are also unknown unknowns. There are things we don’t know we don’t know.

Although not a fan of Donald Rumsfeld, I think he gets unfairly criticized for that quote. At least at the time he made it (February 12, 2002), popular culture treated that statement as typical Pentagon obfuscation–if not outright bureaucratic gobbledygook. Yet that quote contains a valuable insight–an insight that was apparently common within the intelligence community at that time but was new to me.

I’ve been mentoring a new attorney who recently tried her first case–a case in which she was retained four days before trial. On the morning of trial she messaged me terrified over the “unknown unknowns,” while concerned that this fear appeared foolish. Whereas an experienced attorney might recognize almost all of the important issues in a case, she wasn’t certain what to be concerned about and had little time to investigate. I responded that, for good reason, her fear was justified (small comfort, I know), but that there was little she could do about it given her limited time and experience, and that she should simply relax and do her best.

For an attorney practicing family law in South Carolina there are some “known knowns”: who’s been the primary caretaker is a large factor in child custody; the child support guidelines will be applied in almost all child support cases; the myriad statues regarding child custody, property division and alimony. Most folks who retain family law attorneys think that law is largely a collection of these “known knowns.” Because they perceive the law to be “known,” they expect an attorney to be able to give them definitive advice on what will happen in their case.

Such definitive advice is rarely possible. One reason for this is the “known unknowns.” Even if I memorized the statutory alimony factors and the case law regarding alimony, the “known unknowns” would prevent me from giving definitive advice. Among the “known unknowns” on that issue is what facts might be proven on the alimony factors at trial. Another “known unknown” is how a particular family court judge might weigh those factors in that particular case on that particular day.

Now an experienced attorney can bend these “known unknowns” into something approximating knowledge. Having an excellent handle on the facts of the case provides a greater understanding of what facts might be proven at trial. Having greater experience with a particular judge might provide some insight into how that judge might weight the alimony factors. However, judges aren’t robots and even they will acknowledge imperfect consistency on the factors they deem most important. There can never be complete knowledge on this issue.

There are so many “known unknowns” in South Carolina family law that five years ago I wrote a blog about it, One hundred things I don’t know about South Carolina family law. Five years later only one of those questions has been definitively answered. Given a few days I could list another 100 important things I don’t know about South Carolina family law. One task of an attorney is to recognize the “known unknowns” in a case, try to obtain as much knowledge as possible, and advise the client on the likely and potential range of outcomes.

However the issues that give even experienced family lawyers insomnia on the eve of contested hearings are the “unknown unknowns.” No matter how long and how hard one ruminates on a case, one can never be certain one has spotted every potential issue. A lot of what attorneys (or humans in general) call “experience” is a circumstance in which an “unknown unknown” turned into a “known unknown” with little ability and insufficient time to prepare for it. Wise people learn to recognize when they’ve stumbled into an “unknown unknown” so they don’t stumble into it twice. Fools fail to learn from their experience.

Folks who deliberately seek more experienced family law counsel believe they are hiring someone who has transformed a number of “known unknowns” about family law into “known knowns.” Certainly experience can accomplish a bit of that. However, experience is more likely to transform “unknown unknowns” into “known unknowns.” The benefit of such experience might not seem as valuable as the benefit of experience that results in more “known knowns.” However I have a saying that “it’s what you don’t know that will come back and bite you in the ass.” An experienced attorney is much less likely to get bit by the “unknown unknowns.” Avoiding these “unknown unknowns” may actually be the greatest value experienced counsel provides.

One thought on The unknown unknowns

  1. Mindy Schneider says:

    As always, an enjoyable read.

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