Business law exists in two distinct worlds —theory and practice. While theory may be found in textbooks and legal principles, lectures, and ivory towers; practice is something that attorneys experience in the courtroom and through dealing with judges and clients and counterparts. Practice is where theory intersects with real world legal issues. Legal theory versus practice is what sets seasoned counsel apart from the new attorney.  

What’s the Difference Between Theory and Practice in Law?

Understanding legal theory is the first step to being a good attorney. Law students spend many years studying these ideas, which provide the foundation for legal reasoning. It teaches them the critical thinking skills to practice law and how to analyze case law. Many of the answers to the questions attorneys ask themselves are found in legal theory. 

Legal theory can be found in:

• Legal doctrines
• Legal principles
• Precedent
• Philosophy of law
• Constitutional principles

The practice of law is where legal theory comes alive. Unlike theory, which is straightforward, practice is unpredictable. A good attorney must be able to think on their feet to navigate complex situations involving legal procedures, negotiations, regulatory challenges, and client goals. Persuasive courtroom advocacy, negotiation skills, client relations, and knowing how to draft airtight documents cannot be learned through a book — these skills come knowing that is acquired through careful practice.  As Oliver Wendell Holmes said, “The life of the law has not been logic: it has been experience.”

Why it’s important to Have a Business Attorney Who is Well-Versed in Theory and Practice

An attorney might explain legal theory, but knowing what to do with it is a different skill altogether. A good business attorney should be a solid mechanic. A good business attorney can take a problem and find a solution. Although they will not invent quantum physics, they can keep the car running. Bridging the gap between legal theory and practice can only come with experience.  

A good example of theory versus practice takes place during litigation. At a deposition, an attorney may only make objections based on the form of the question and attorney-client privilege — these rules are legal theory. The practicum part is that people will simply talk over you. An attorney needs to know when it is time to call the judge if the adversary is raising an objection and disallowing their client from answering when there is no basis. This distinction can be learned only from experience.

Another area where theory versus practice comes into play concerns tax theory. While a client has the right to certain due process rights at certain stages during a tax controversy, and can seek an appeal, the practicum part is that the attorney needs to know which forms and levers to pull to get the right results. Depending on when the notice of levy was issued, the client may be eligible for an equivalency hearing or a collections appeal. Still, the attorney needs to know where they are in the process to get the right form and which underlying resolution suggestion supports it. The whole game is to reduce damage and ensure a soft landing — this is learned. 

Contact an Experienced New York Business Attorney

If you are a business owner, having knowledgeable and experienced counsel by your side is vital to your success. Offering trusted representation and high-quality legal services, Brinen & Associates advises clients regarding a wide variety of business issues and is dedicated to achieving the best possible results in each matter. Call (212) 330-8151 or send us a message to learn more about how we can assist you.