Gone to LinkedIn

The origins of this were in my own firm, the one I left to form in 1999 and lasted until 2004. Since then a lawyer's blog seemed like too hard and too risky for my firm, and the postings dwindled away. Maybe it will come back, but probably not. My PR, such as it is, will be over at LinkedIn.

Non-conservative

I'm a political junkie and occasionally think about how to label my politics.  A non-Roman Catholic Buckley conservative, maybe.

Which puts me in a different stockyard from the vocal elements of America's right wing.  They can be amusingly off beam and ignorant on a variety of subjects, and on a few not so amusing.

Not funny at all, to me, is their attack on lawyers who defend unpopular people.

This post - the first on this site in many moons - is provoked by the attacks on Justice Department lawyers who are being "outed" as defenders of terrorists, because they and/or their firms participated in the cases that helped to define the limits of our judicial response to enemy combatants.

What do they think of John Adams, who represented the British in the Boston Massacre?

The Smartest Thing About Law Practice I've Read in Years

This came in from the ABA. If it infringes copyright to copy it in full... I beg forgiveness.


LAW PRACTICE MANAGEMENT
How Law Practice Will Become Like Off-the-Rack Suits
Posted Mar 2, 2009, 08:50 am CST By Debra Cassens Weiss
Law practice in the future will involve the mechanization of legal tasks into standard systems, creating job losses for lawyers who don't evolve, Richard Susskind argues in his new book The End of Lawyers?
Today law practice is like a custom-made suit—it is crafted to an individual client’s needs. But in the future, Susskind argues, standard legal tasks will be performed by software or done in a lower cost manner—they will be commodities like off-the-rack suits, explains a book review in The Lawyers Weekly.
Complex legal issues will be broken down into individual tasks, and lawyers will identify the best way to perform them. One this is accomplished, Susskind argues, these tasks may be handled by paralegals, by lower cost law firms or specialized overseas companies.
In this evolution, the “dominant species” of lawyer will be legal knowledge engineers who organize complex legal content and processes that will need to be analyzed and distilled into standard practice and computer systems, according to the book review.
“Adapt or die,” the review says. “That’s the stark option Susskind offers lawyers. The coming seismic shift in legal services will result in the demise of many law firms, the extinction of many legal fields, and will force many lawyers to scramble to find new lines of work.”

******************************************************

Business Development

Here at the firm we have a Business Development Committee, which is so named, I suppose, because Marketing Committee sounds a tad too craven.

I'm all for it. Heck, I currently chair it. But there is a strange aspect to marketing and selling a lawyer's services:

The principal way a lawyer's business is developed: (a) do good legal work and (b) get referrals.

Way more than 90 percent of the time (he says from his gut, not from data), that's it.

Which means the best way to sell is, don't. Just do great work and let word of mouth do the rest. The problem is easy to state: once the work is done, the process is largely uncontrolled. True word of mouth is outside your control. Lawyers plan, practice, understand process, and always, always try to keep things under control. The answer is way too Zen.

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?

************************************************************************

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.

************************************************************************************

Ambiguity

One of the many good things about the practice is that we get to debate and worry about matters like ambiguity.

I was reminded of this by a case I just read, where the lawyer warned the client that some contract language was ambiguous. The client said don't raise it now, we are close to signing, it might change the deal, we are better off with the ambiguity than losing the point now.

So the lawyer went along, and later even took a position in court to support the client, and ultimately the client lost over the ambiguity. And so sued the lawyer. And the lawyer settled for seven figures.

As to ambiguity:

The second-trickiest part is to recognize it. In negotiations an awful lot of things become part of the deal's culture, shared understandings of what is meant, what will be done, etc. So the writing may not completely capture the idea, but because of deal fog no one sees the gap or the double meaning. Until later, when others read the same language and put their spin on it and take it to a judge who may never have done a deal in his or her career.

The first-trickiest part is how to handle it. The East Coast lawyer's approach is to raise any ambiguity and resolve it, in almost every case. I used to be contemptuous of this, thinking it unsubtle. But the longer I'm around the more I think it's right. Swat all the flies you can see. There will others you've missed. And if the client insists on an ambiguity, put a note in the file. It won't protect the client but it may protect you and your firm.

Finally, the interesting extra-credit question. Where does an ambiguity sit with respect to a party's representation - or his lawyer's opinion - that the contract is enforceable according to its terms?

************************************************************************************