I Take First Words
Lessons learned from my first semester of law school
With a title like “first words”, you’re probably imagining something about cutthroat competition between all the 1Ls at BYU Law, with some people snobbishly treading over others on their pathway to the top of the class.
If you’ve read One L: The Turbulent True Story of a First Year at Harvard Law School, then your imaginations would be correct—if this were Harvard, and if the book were actually a true story, which it’s not (Scott Turow had to dramatize some things if he wanted to make any money selling a book).
No, BYU is a little different than Harvard. Maybe a lot different. Everyone here is very kind, there are no egotistic people (if anything, I’m probably the worst offender), and if there’s any competition, it’s about how many pints of chocolate milk the boys can down before getting sick (me = less than one).
So when I refer to first words, I’m talking about some legal principles I actually learned as a child that ensure that people can’t be dishonest and still prevail in court.
Me as a sneaky child
One of the silly things I used to say as a kid to my sister was, “I take first words!” That meant that if my sister slipped up and said something incorrectly, and then afterwards tried to correct it, I would take her first statement as the only valid statement. Hence, if she said “you can have my cookie” but meant to say “you CAN’T have my cookie”, well, guess what… I take first words (and I also take cookies).
I always believed as a kid that I could catch people on technicalities. I would read through my teachers’ syllabi in high school and try to catch holes in the “contract” that would allow me to do less work, then argue my case before my teacher and attempt to prevail based on my reliance on the faulty language. (To any of my teachers reading this—wow, I’m sorry…)
What I didn’t understand was the concept of good faith.
Good faith
No, this has nothing to do with religion (that would be the last twelve paragraphs). Good faith means honesty, reasonableness, and fairness. A good faith interpretation of my sister’s statement, for example, was that she didn’t want me to have her cookie. So my mom would arbitrate the ensuing argument by considering the contextual evidence. What was my sister’s subjective intent when she said the words? What would her tone of voice have conveyed to an objective listener? What about the history of her prior dealings with me? (I.e. since when had my sister ever been known to just give me a cookie?)
I fought back against these arguments because they didn’t favor me. I only focused on the textual evidence and I took my sister’s words at face value. She meant what she said, and she said what she meant. If she slipped up, then too bad. That’ll teach her to be more precise the next time she opens her mouth.
But nevertheless, my mom’s judgement was law, and there was no appealing it: the good faith interpretation of my sister’s statement was that she didn’t want me to have the cookie.
Now is that unfair or WHAT?!?
She literally said I could have her cookie! Why should I consider her subjective intent? I can’t read minds! And relying on the tone of her voice is so idiosyncratic! If I were from Micronesia, maybe her tone of voice would have signaled to me that she was being generous! And who cares about what my sister has done in the past? Maybe she had actually wanted to give me a cookie, but then she changed her mind and is lying now about what she really meant to do!
SO unfair!!!
At that point, I would usually stomp out of the courtroom into the drizzling rain, hail the nearest cab, and catch a ride back to my bedroom.
Realizing the truth
The doctrine of good faith, however, has a retort for each of my points. It always took some time alone to be able to recognize it.
First, yes, she said that I could have the cookie. However, don’t I ever say things wrong? What if I said something wrong that was of greater magnitude? Wouldn’t I expect some mercy for my slip-up?
Second, yes, maybe her tone of voice would have signaled something different to someone else. However, am I from Micronesia, or am I from here? What would a reasonable, objective person have understood from the tone?
Third, yes, maybe this time was different, and she was breaking from her custom. But what are the chances of that? Pretty low, right? Did I really think she was being generous? Or did I know in my heart that she had slipped up, and I was trying to take advantage of her mistake?
I don’t steal cookies anymore
As you can tell, I naturally err on the side of justice rather than mercy. Even though this was a childhood example and today I would be graceful enough to let the same issue slide (cookies from the BYU Creamery are cheap), there are other situations where I would still want to stick to my guns with an unforgiving textualist approach.
But the Savior, Jesus Christ, stands in the perfect center between justice and mercy. His arbitration is always perfect. He understands when someone has simply slipped up, and when another’s true intentions are guileful. He is the Objective, Reasonable Man. He knows whether you’re from Micronesia or not.
In the law, good faith plays a role in all sorts of topics, like whether to admit parol evidence of terms that were discussed but never included in a contract, or whether someone deceitfully racked up expenses before the adverse party was to pay the damages due. In these types of cases, the parties present the best evidence that can be discovered, and the judge makes the best choice she can.
In life, however, there is no destruction of evidence, nor can anyone escape the Great Judge.
Some people might say,
“Eat, drink, and be merry; nevertheless, fear God—he will justify in committing a little sin; yea, lie a little, take the advantage of one because of his words, dig a pit for thy neighbor; there is no harm in this.”1
Will that be you?
Because at the time of resurrection,
“The dead shall come forth, and be brought to stand before God, and be judged according to their works.”2
And that will be a great and terrible day. The memory of our many sins will come back to us. The judgement bar will loom large. And then the Lord will say, with a “voice of many waters, and as the voice of a great thunder,”3
“Come, ye blessed of my Father, inherit the kingdom prepared for you from the foundation of the world.”4
At least, that’s one of the two options.
I’ll assume the best for me and you.
As long as we live in good faith!
2 Nephi 28:8, emphasis added
Alma 40:21
Doctrine and Covenants 133:22
Matthew 25:34