Law School Biases

In preparing for next Monday's Evidence exam, I've been reading An Introduction to the Law of Evidence, written by my professor, Graham Lilly. In the opening pages he makes an observation that I thought rather provocative, if only because it is so simple and yet easily over-looked:

Two concerns are central to all phases of litigation: first, a concern with establishing facts; and, second, a concern with the choice and application of legal rules. The formal study of law emphasizes the choice, construction, and impact of legal rules and principles. This academic preference has pedagogic advantages, but it obscures a basic reality: the outcome of most cases is determined by counsel's success in establishing facts favorable to his or her client. The governing rules of law are contested with much less frequency than is suggested by a study of the reported cases.

For those of planning a future as litigators (and even those not), this is something to keep in mind. I've seen other examples of distorted perspective resulting from only reading appellate case law. In all of the criminal procedure cases, the defendant has already been convicted, so one can easily forget the occasional person put on trial who was innocent and/or acquitted.