How can we resolve a bet on a question of law?

Question

Bob and Rob debate a question of law and do not agree. There isn't any material dispute between them to go to court about. They just want to find out what the legal truth is / who is right and who is wrong.

They can ask the question on this site and get a convincing answer but, should any of them later act in reliance on that answer and end up in a legal trouble, the answerer won't be liable. They both want an answer they can reasonably trust, and random people on the Internet just fall short of this requirement — no matter how seemingly reputable they are. Bob and Rob could even be debating just any good question from this site which one reputable member answers "Yes", another "No" — for example to kill time in COVID-19 lockdown.

They decide to bet. They are happy to pay to have their dispute resolved by an authoritative source (e.g. a lawyer, or a court of law).

How can they do that?

If any of them hires a lawyer, that lawyer will be protecting the interests of their client and therefore could potentially be biased to produce resolution that favours their client (lets them win the bet).

Can they jointly hire a lawyer? Are there any other solutions?

Answer 1

You can jointly hire a lawyer

Yes, they can jointly hire a lawyer, coming at the lawyer essentially as one single entity: a partnership. The lawyer will research both sides of the question, and give the partnership a fair report. The fee you pay may not deliver to one definitive answer, but it'll discuss all the likely angles.

However, if one of them needs a lawyer in an action against the other, that jointly hired lawyer will be "conflicted out". So Bob should

• identify the best lawyer in town in that particular area of practice, and retain that lawyer privately without telling Rob.
• Then, identify the second best lawyer in town, and recommend to Rob to use that lawyer for the "joint" lawyer.
• Now, when we come down to Bob vs Rob, Bob has the best lawyer, and Rob's is third best.

Facts and circumstances will decide the matter

The biggest problem with floating a hypothetical question is that the actual facts and circumstances in your genuine flesh-and-blood case are likely to be different. Understand that litigants are especially stupid about this. There's a huge bias to believe matter X is relevant/on-point to their own case, when a neutral judge may not see it that way at all.

Likewise, there's a huge bias toward presenting your hypothetical in flattering terms, on the hopes of getting a more favorable ruling. Then, when the real case comes up, the facts and circumstances differ too much, and the judge says "these facts don't fit your declaratory judgment". And now it's a new ballgame.

Your best bet, in areas of doubt, is to obtain legal advice and pay heed to it.

Answer 2

How to resolve a bet on a question of law? should any of them later act in reliance on that answer and end up in a legal trouble, the answerer won't be liable.

If said act[ion] in reliance on the answer is about a potential matter to which Bob and Rob would be the parties, Bob or Rob could consider filing suit for declaratory relief. The decision(s) in that case would determine ex-ante the parties' rights or award if the issue materializes in the future.

Hiring some lawyer to decide the question of law is futile because the lawyer's conclusions are neither binding nor something that could be reviewed on appeal. Furthermore, there is the very realistic possibility that the lawyer himself might be clueless on that question of law. Oftentimes judges can --and happen to-- be clueless as well, but (1) the binding component leads to what is known as the law of the case of Bob vs. Rob, and (2) the decision may be appealed.

Bob and Rob could resort to arbitration to have the dispute decided. This would be the midpoint between just hiring some lawyer and pursuing a declaratory judgment in that the decision in arbitration would be binding.

The problem with arbitration is that judicial review would be unavailable even for questions of law, and even if the parties explicitly agree to preserve the right to appeal questions of law. This means that the arbitrator's decision could depart from the legal truth and yet be irreversible.

For instance, HL 1, LLC v. Riverwalk LLC, 15 A.3d 725, 732 (2011) points out that both Federal Arbitration Act and Maine Uniform Arbitration Act list exclusive grounds for vacating arbitration, and the appeal of any question of law is not among those grounds ("[t]he Court held that the FAA provided exclusive grounds for vacating arbitration awards and that those grounds may not by supplemented by contract").

Answer 3

"Agreement" is probably the first step: over what constitutes an authoritative source. As you allude, courts are authoritative, though access is limited to appropriately injured parties. Otherwise the court's opinion would be "advisory," which is typically proscribed.

You might consider paralleling the structure often used for factual resolution of insurance contracts. For example, if one is trying to determine the extent of hail damage from a storm, each party may be entitled to an appraiser's opinion. If the appraisers disagree, then they—not the parties—choose a third appraiser to "adjudicate" the disagreement. That expert's opinion is binding.

In your situation, if you could agree to abide by the decision of a suitably authoritative expert, you could skip the first layer of disagreeing, adversarial experts.

Answer 4

The philosophy stack is available

That’s the forum for finding the truth. Here we deal with the law.

If there is no dispute there is no legal question to be resolved. Bob and Rob can each follow the law as they believe it to be. If and when this leads to a legal dispute (between them or with a third party) the courts are available to resolve that dispute. That may or may not resolve the issue of law - if the particular dispute can be resolved without that, so much the better because the judiciary prefers to leave lawmaking to the legislature when they can.

Law is a practical discipline - the search for certainty belongs to philosophy or the sciences. Lawyers, engineers and doctors don’t care about the truth - they just want what works.

Answer 5

Your question contradicts itself:

They just want to find out what the legal truth is / who is right and who is wrong.

Here you have said that the primary interest of each party is to know the truth.

If any of them hires a lawyer, that lawyer will be protecting the interests of their client and therefore could potentially be biased to produce resolution that favours their client (lets them win the bet).

Here you have said that the primary interest of at least one of the parties is to win the bet.

It is not possible for both of these things to be true. If the first thing you said is true, there is no problem. Either party can hire the lawyer. The lawyer would be betraying his client's interests if he slanted his advice so his party would win the bet since that is not the client's primary interest.

Answer 6

It is false to think that one has to be right and the other has to be wrong.

Law is in the eye of the beholder. What's written by the legislature is not a done deal. It has to be interpreted by judges, many times in actual cases to really know what it means (how it will be applied) and whether Bob or Rob is right. And that's assuming they're not both wrong, lest you forget that possibility.

This subjectivity is all the more so the case if the disagreement between the two is based on some very technical nuance, perhaps a contested political one.

If they both hire the same lawyer, the lawyer can give his best opinion in good faith. But that doesn't mean the lawyer is right.

There is no right in law.

Written law is not completely deterministic. Your results will legally depend on discretion of a police officer, district attorney, judge, and potentially jury.