Tuesday, August 19, 2008

Brave New Law World (2)

There is one way, in this transition period to virtual everything, that we have gone to better practice. E-mails. While we are all moving too fast, and without enough time to think things through (see previous post), at least we are putting it down in writing.

I was never good at dictating memos or letters. So for years, what I said was often that - what I said - and any nuance I might have tried to convey would not be remembered. Now we can do all that in writing, and if we do it right, and say it right, there is a decent record of the advice. I think that's good for clients, good for good lawyers, and bad for bad ones.

Brave New Law World

I remember standing at a closing with a senior partner, many years ago, marvelling at how we could dial long distance calls with a credit card - no operator - it seems miraculous.

Now it seems tedious. The cell phone's occasional dead battery, or landing in a place without service, are what bring it back. Communications are fast on their way to something instantaneous, cranially hard wired. Think about who you want to talk to, and connect, maybe by tapping your fingers on your wrist.

So, to be the thousandth curmudgeon to say it - do we have time for contemplation any more?


Thursday, August 07, 2008

Practical Unenforceability

I'm putting together a seminar on Unenforceability, focused on provisions in contracts that are unenforceable even though one sees them in practice all the time. I think it's a cool idea, which is yet another good index of what a geek lawyer I am...

But what interests me equally is something I will call Practical Unenforceability. It simply means that the clause may be enforceable on paper but in the real world you can't enforce it.

The best example reminds me of a time when a certain type of scales fell from my eyes. My old man, who like me was a corporate lawyer, was responding to my question about a claim against someone who had wronged me. Don't remember the details, and this was long before my time at law school. I asked Dad if I could sue the guy. He said sure, and I'd probably win.

"But he's judgment-proof."

I had to ask what it meant.

My first encounter with Practical Unenforceability.