This post is in part a very belated response to a series of posts by Jim Belshaw (here and here). Sorry it’s so late, Jim! I do think about these things, but they take a while to percolate. What do people want out of their lawyers, and do lawyers provide these things?
Part of the issue is that law is intrinsically adversarial. An anecdote first: for Mother’s Day, Eaglet No. 1′s class told the teacher facts about their mothers which the teacher dutifully wrote down and published in a small booklet. I learned that my distinguishing features are that I like risotto, I watch Play School, and I teach war (with a question mark in brackets beside it). I think the teacher misheard Eaglet No. 1, who has a husky little voice and tends to mumble.
Then all my family were kidding with me, saying that law is a kind of war, it’s not really that inaccurate. Certainly, some lawyers regard litigation as war. When I was doing my articles, a litigation partner told me to read Sun Tzu’s The Art of War for tactical litigation hints (ignoring the bits about spying, which might get us into trouble…) Sun Tzu’s treatise is regarded as an important text on military tactics.
Really there are two aspects to legal services, however. There is the ‘front end’ – advising people what their legal obligations are, putting together deals that work and facilitating actions. Then there is the ‘back end’ – resolving disputes once everything falls apart. Part of the difficulty is that the ‘front end’ always has an eye to what happens if the deal falls apart. So they’re writing and advising not just for the client, but also with an eye to any future disputes in court.
In his post, Jim mentioned the way in which lawyers tend to put in all kinds of ‘boilerplate’ clauses in contracts, regardless of whether they are really appropriate or not. I suspect these clauses reflect past contractual disputes. Perhaps some person tried to get out of a deal by saying, “this clause just says ‘book’, it doesn’t say ‘books’, so I only have to supply one book.” (In all likelihood, they knew perfectly well that the deal was meant to encompass more than one book, but technicalities are the bread and butter of the law). So now many contracts include a boilerplate clause saying, “In this Agreement, references to the singular include the plural, and references to the plural include the singular.”
But I think also that lawyers sometimes forget what they’re supposed to be doing (which is facilitating the client’s choices and actions in a way which furthers their interests). Sometimes they get so caught up in the Art of Law that they get distracted. Recently I spoke to two friends who have moved out of the legal and financial service industries and are now working for former clients. They had a number of interesting insights. One said, “I don’t want to be told what to do. What I want is enough information about the various options available to me to make up my mind. Too often lawyers just say, ‘Do this’ and don’t run different options by you.”
They also observed that there was a tendency on the part of lawyers to be too combative (so that litigation was always presumed to be the first response a client wished to exercise in the event of any trouble). I’ve seen this before. When I repossessed houses, often, many of the mortgagors were unrepresented. But when they were represented, sometimes the lawyer representing them would file what is known as a ‘bare defence’, in which many allegations were simply not admitted or denied outright. Sometimes people (via their lawyers) would go as far as to deny that their names were as stated on the Statement of Claim or that they owned the property (and given that I’d taken all the details straight from the Certificate of Title, this was a pretty stupid kind of defence really). Where the defence was easily rebuttable by reference to documents such as the Certificate of Title, the mortgage and the loan agreement, we would usually file a summary judgment application, exhibiting the aforementioned documents. Of course, this took up more time on my part. Ultimately, the lender used the payout money from the mortgage to pay my fees as part of the costs of enforcing it. Why were these lawyers telling the defaulting mortgagor to do this? Such tactics were just a delaying of the inevitable, and ultimately, it was the mortgagor who paid for the time I spent responding to their claims, not the lender. If the defaulting mortgagor could afford to pay a lawyer for the costs of filing a dummy defence, I wondered why they were hiring a lawyer; he or she would be better off paying the arrears. Interestingly, apparently Victorian Civil Procedure laws have recently been amended to prevent the filing of bare defences. I can’t say I’m particularly sad to see the demise of such defences (I’m sure someone will come along and tell me why I’m wrong).
Usually by the time a repossession case had arrived on my desk, options such as payment plans and the like had been exhausted. Really there were five options open to defaulting mortgagors: (1) pay the arrears if possible; (2) refinance with another lender; (3) sell the house yourself and give the money to the lender; (4) give possession to the lender; or (5) sit there and do nothing, in which case repossession would just proceed. If I had been the lawyer for these people, this is what I would have advised them. None of these options really involved much legal work per se, and so perhaps it wouldn’t have been in my best interests to tell them that, but it would have been in their best interests.
This harks back to a point Jim makes in his posts: sometimes the best way of resolving a dispute is not to take legal action but to take some other kind of action. As I’ve related in a comment to one of his posts, I once did work experience with a barrister who had worked as a builder for ten years before he went to law school. Naturally enough, while at the Bar he practiced in construction law. He told me an anecdote about how he once acted for a plaintiff who was very dissatisfied with the quality of her house, and was suing the builder. She was most upset about the chimney, as a cold draft whipped down the chimney and there were gaps in it. The case got to the point where the parties were about to end up in court. The barrister went out to have a look at the property, squinted up the chimney, and saw that he could easily fix the fault with perhaps an hour’s work…as a builder, not a lawyer. So he did. And the potentially drawn-out and unpleasant case settled. The nub of the plaintiff’s issue with the builder was that chimney, and once it was fixed, she was prepared to settle with regard to the various other defects.
Legal action is not always what is needed to resolve an issue: but lawyers are trained to give legal responses (which harks back to the post which sparked Jim’s thoughts, Ken Parish’s post on cognitive biases and lawyers). Perhaps lawyers need to be able to recognise when their own legally trained response is not the best option for a client, and when they need to get help from someone else to resolve a dispute. I’d be stuck if I were representing the lady with the drafty chimney! I have no idea how to fix a chimney…all I can do is file a writ. But perhaps if I had that client, it would have been open to me to suggest that she should get a quote for a builder to fix the chimney, and we could compare the costs of going to trial with the costs of getting a builder in once we had the quote. As lawyers, perhaps we need to keep an open mind about non-legal ways of resolving issues, and about getting down to the nub of what the client wants – does she want a fight, or does she want a repaired chimney? Law should not always be war.
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“Law is politeness by another means” – Katy von Which-Clause?
I’m not always polite. If you really push me I can be nasty. One of my bosses said, “You’re always so cheery and nice”…then he saw me lose my temper at someone about a year and a half into the job…”Remind me not to get on your bad side,” he remarked.
But I prefer to fix things civilly at first. After all, isn’t that the point of law – to be civil rather than to hit each other over the head with stone axes? If we substitute writs for the stone axes, it’s still warfare.
LE@2: glad you like the pseudo-mondegreen. Can be taken lots of ways.
As to laws v stone axes – having visions of being attacked with laws – when they were written on stone tablets. Did Moses smashed his first draft when cracking it at the (soon to be dead) calf-worshippers? Did he throw the law at them literally?
Mind you, even on paper, having the book thrown at you would hurt.
Here in software-land we often quote the old saying that “if all you have is a hammer, everything looks like a nail”.
And it applies at several levels.
“If all you have is Java, everything looks like objects”.
“If all you have is software, everything looks like a programming program”.
For lawyers, I suppose, if all you know is law, everything looks like a lawsuit.
Quite often in my work I will be assigned to a client who will have a very specific change in mind. “We need to add a column for the the 2009 records”, for example.
I used to take clients at face value. You want another column? No worries, a column it is.
After a while you begin to detect that what you have done is failed to identify and solve the underlying problem. It’s like a person going to a doctor and saying, “Doc, my leg really really hurts. Give me morphine, please”, and being given morphine. Meanwhile the broken leg sets badly.
I take the view that my clients want a speedy, effective and accurate solution to their problems. They frame solutions that they can imagine, based on what they know is possible. They ask me to wave my magic wand to bring these things into existence.
But these days I first ask: why? What is the column for? Why are we adding another one? What if I could replace all those columns with a different, more readable report?
Sometimes, more software isn’t needed. Recently I was asked to look into a requirement from a client to keep a list of documents. They had in mind a custom application to manage and update this list. My recommendation was to use the corporate wiki instead.
There’s really two issues here.
The first is: do we simply do what the client asks for?
The second is: is our expertise required, or is there a simpler fix?
Turning now to the question of boilerplate.
In software we have a rule of thumb that the “happy path” of the software will only constitute 10% of its size in lines of code. The other 90% will handle common alternative paths, uncommon alternative paths, really obscure corner cases that only happened once in 1989 but which must be retained for accounting purposes and of course the omnipresent likelihood of errors and failures.
Law would be the same, only more so. The teaching of law follows the usual formula of:
* Here is the basic principle, as expressed in cases A, B and C. (The happy path).
* Here are the alternative twists, expressed in cases D-Q (The common alternatives).
Then eventually in practice you get to learn about the uncommon alternatives, and one day you may find that your case was the same as a single example that happened in rural Nowhereshire in 1647.
But if you don’t include the boilerplate (the unhappy-path code), then one day you will inevitably come across a failure condition. Your legal document will not be “robust”, in software terms.
“everything looks like a programming program” might be read as “programming problem“.
Now you know how bugs are born!
JC@4 a very interesting comment, and some great links. On one of those posts there is a comment which has made a lovely start to my day:
Whoever said that a) law was simple or b) programming wasn’t sexy?
Thanks, LE. I too thought that JC@4 was perceptive and very interesting because it is a comment from another area.
LE refers to the adversarial nature of law. This links to the nature of the court system. I would argue, I think, that the great majority of law now measured by lawyers and fees is not, of itself, adversarial at all. The continuing influence of litigation and the court system is arguably itself an example of cognitive dissonance!
Jim;
The reason I can draw the analogy is that I studied law for a while. Ken Parish was one of my professors, which is why I ultimately wound up managing a small fleet of blogs.
I have learned a lot from you, Jacques. (You always have good book recommendations too).
I really love that programming analogy with boilerplate. Basically you’re stopping certain uncommon disputes from arising because something once happened in the past – you want to head them off at the pass. Maybe we lawyers need to explain that better: “Look we put all this stuff in JUST IN CASE some weird dispute comes up, because such a dispute did arise once…”
As a lawyer, even when you’re putting together a deal, you’re always trying to anticipate if things will fall apart and what will happen if they do.
But perhaps some lazy contract drafting occurs when people use electronic precedents – so they just slot in information without considering whether each clause is actually relevant or not. I used to occasionally see this happen with court filings too – people just slotted information in without adapting the pleadings appropriately.
Those are probably hard questions to ask if you’re getting paid by the column.
Another question that’s important to ask is: Do I go with standard practice or do I assume my expertise are strong enough to justify diverging from standard practice to provide a ‘better’ solution?
On a separate note, I recently discovered the Stephen Fry legal drama/comedy ‘Kingdom’. It provided a refreshing view of the role of a lawyer as a negotiator/dispute resolver and present the courts as an expensive and undesirable last recourse. It highlighted the importance of understanding the clients, the problems and the law, rather than glamorising the court drama. In fact I think there was only one or two court scenes over the three seasons.
It came to me in the shower today that I’d been a bit unfair to the bare pleading lawyers. I do know a few occasions where lawyers took that tactic because the client wanted information out of the lender and figured that being obstructive was the way to get it. Ultimately it worked – but usually it took a while to work out what the other side really wanted.
I once settled a million dollar claim by showing a guarantor where all the money from the sale of the guaranteed business had gone. He was upset because he thought there should be more than enough money to cover the business loan without the lender calling on the guarantee. But he hadn’t factored the fact that if your assets are sold in a firesale by liquidators, your assets go for much less. I don’t know if he’d actually asked the lender about how much the assets had gone for, and he said the lender had not provided him with detailed accounts of where all the money had gone to before. A lot of heartache could have been avoided if that had been achieved sooner.
Robustness is the term of trade. It refers to gracefully handling unexpected input. One of the straightest paths to robustness is to avoid having unexpected inputs, and one way to do that is to have a lot of code to handle corner cases. Then your inputs are, by definition, expected.
Robustness isn’t free. It leads in particular to complexity (“where on earth is this corner case being handled?”) and exacts a toll on performance (“bloody bloatware!”). And yes, you can see this in law too. But for certain applications robustness is the preferred “-ility”.
I laughed, JC!
LE, I am actually working in a law office just at present – not as a lawyer I hasten to add but on law related matters – and all this started a long debate on the nature of law and lawyers.
I find that the I am increasingly confused about the nature of The Law!
On the subject of the lawyer’s trade, is there an equivalent to Code Complete? (I own both editions!)
I mean, a book devoted to all the nitty-gritty of writing clear, maintainable legal documents. Code Complete regularly tops “must read” lists for programmers. Only the Wizard Book comes close in terms of influence and admiration.
Another point about robustness.
The other classic tradeoff is with strictness. A strict system simply rejects unexpected inputs (sometimes, by design, this rejection takes the form of immediate total failure).
A robust system will try to handle the input in some intelligent fashion.
Sometimes you want robustness, and sometimes you want strictness.
Analogies about common and equity law are left as exercises for the reader.
Oh delicious.
Although sometimes equity can be inflexible in its own little equitable way (particularly if in the form advocated by Meagher, Gummow, Lehane et al). It is this hardening of forms which led to fusion…oh but let us not enter into fusion fallacies…
Jacques, I’ve never been made aware of an equivalent to Code Complete during practice or at law school. However, I did a quick Amazon search and came up with Plain English for Lawyers. I’m almost tempted to buy it and review it for the blog. I suspect it’s primarily aimed at the North America, which may be why I haven’t heard of it.
Having been programming for about two decades now, I don’t think I’ve ever heard of “Code Complete”. Although given I don’t read computer related books generally, it’s probably not much of an indication of its worth.
As for analogies, the more I learn about law, the more I can see analogies between ‘lawyering’ and ‘hacking’.
LE,
I refer to your case with the Builder/Barrister and the old lady with the drafty chimney.
Given that as a barrister, our B/B was likely to be extremely well paid and as a builder less well paid, would it not have been more useful for him to have a quiet word with the respondee builder and tell him to do the work as instructed?
For another thought, was it useful to society not to take the builder who cut corners through the wringer, maybe society would be better off without that builder in business?
Regards,
Henry2
I have become very fond of ‘How to Do Things with Rules’ in recent times. People often mistake it for a statutory interpretation primer, and on one level it is, but it also includes a beautiful chapter on precedent, and a careful consideration of both legal and other algorithms, with flow-charts and diagrams.
Another nice one is ‘Thinking Like a Lawyer’, which has (among other things) a section called ‘peculiar problems’ on the issues Roman jurists got themselves into because their system treated slaves as property without any moralising argument for doing so (slavery being ‘contra naturam’, you see):
http://www.amazon.co.uk/Thinking-Like-Lawyer-Eightieth-Supplements/dp/9004124748/ref=sr_1_3?s=books&ie=UTF8&qid=1309254039&sr=1-3
There is a lovely write-up on John Crook — in whose honour the above book was written — available at the link below. He resigned from the British Academy in 1980 over that body’s refusal to expel the traitor Anthony Blunt.
http://focnewsarchive.blogspot.com/2010/04/2007-september-7th-obituary-professor.html
Henry, I can’t remember, but I suspect he charged as a barrister for the building work. The builder was a shocker, and the plaintiff did not want him touching her house again.
In terms of whether it was useful to society to settle the action…ah, now we get into interesting territory. Is the aim of private law simply to resolve private disputes between parties, or is it to effect other social aims? Some theorists argue that it is the former (Ernest Weinrib being a prominent advocate of this view) and some argue the latter. My thinking is somewhere in between. Yes, law can and does act as an incentive or disincentive for certain actions. To my mind, pretending that this doesn’t happen is putting a hand over one eye when looking at the picture of the law – it renders it incomplete. But on the other hand, should someone sue another person simply for the good of society, and avoid a convenient way of resolving their personal dispute? Personally I think not. There are other better ways of regulating the conduct of builders (eg, reporting him to the Master Builder’s Association). In any case, taking him to the brink of trial was hopefully enough to force him to do an adequate job next time…he’d have had to prepare his defence and spend a lot of money as it was. Although having seen a few building cases, I’d note that buildings just breed disputes.
Crook sounds like a delight – one of those genius polymaths and English eccentric gentlemen.
In the longest-lived system I’ve built (running since late 80s, which manages all VicRoads big contracts), the *really* tough thing was getting all the gory details on dispute resolution processes from the lawyers. It was also the one area in the printed “Contract Administration Manual” (which covered the manual systems I was replacing, and the regs governing them) that was full of waffle.
It’s also the best case study of the client not knowing what they needed, me having no reason to say they were wrong, but having that awful nagging feeling – and me putting my foot down for 3 months or more, asking “are you SURE that for each contract there is ONE AND ONLY ONE start date, ONE AND ONLY ONE completion date…”. Always got “of course there is, why are you asking such a stupid question”.
Eventually – “OK, last chance… if I do this next bit of work it’ll be a monster to undo…. does every contract have only one start, one date of practical completion, and one date of completion, one date beyond there can be no disputes….?”
“Oh…. do you mean a contract with separable parts? Like when an approach to the bridge is handed over before the span is completed or even started? Oh, that only happens rarely, a few times a year… although… they ARE happening more these days than 10 years ago…”
“OK… don’t tell me, these are the really big complicated contracts, prone to disputes, prone to questions from the minister, and even once a year, they’ll mean you’ll have to manually adjust all your reports based on yellow sticky notes you keep around your screen, which is why you want a computer to track all this stuff in the first place”
(Sound of me pointedly ripping up half the doco of the half-built system, the sound of approximately $30K of work going down the drain)
Lessons learnt:
(1) The unusual cases are the most important to handle in advance
(2) Management types usually only consider the straightforward cases.
(3) Trust your gut rather than instructions if you want to give what is needed rather than what you are told is wanted.
Perhaps a cheat sheet of awful horror stories, numbered the same as the supposedly unnecessary boilerplate paras, would be useful to keep, and give to clients if they complain about the length of the contract.
Besides… such a cheat sheet could be a real giggle.
Apologies and a heads up – SL will be absent from the blog for a little while due to the fact that her computer has ceased working and started ticking like a bomb. She’s just taken it off to be defused.
Any lawyer worth their salt is great at horror stories, it is the second-favourite selling technique. In order:
1 look at this awesome benefit
2 if you don’t do this you’ll die
3 this sucks but the government is making you do it (and we just can’t do it cheaper than this)….
DEM@24
Please pass on my best wishes to SL for a speedy recovery, both of withdrawal symptoms, and for any data lossage.
I’d have sent an email…. but …..
Ah ha, so that’s why she dropped off when we were chatting just before. Most unprecedented… Poor SL.
I will be about a little bit, but cannot do any more than comment as I only have my iPhone. Apologies for this, it simply died when I was in the middle of chatting to LE – irrevocably died, too, in that the whole hard drive has to be replaced.
Just a follow up post – http://belshaw.blogspot.com/2011/06/has-law-caps-lost-meaning.html
P@25
is this cuz you is sneaky? So what’s the first?
Yeah I wanna know what the first-fave selling trick is too. Importantly, do I know it?
lol I wrote it already, with the little ’1′ in front of it. It isn’t that fancy!!
Not sure it would have been applicable as much in your areas of law, LE.
Geez. Always watch the left hand if the right is doing the stroking. Major Fail signing off.
no, not so applicable for me. People didn’t usually consult me for awesome benefits, but because some money had gone somewhere and they needed me to get it back. Or they wanted to keep it when someone else wanted it back.
SL@20. That’s a great write up indeed!
LE@34, I dunno, getting a pile of money can be awesomely beneficial…
D@36, LE is not disputing your point, she means that her line of legal work in her past life did not really lend itself to selling technique no 1, since it was really compliance/loss-recovery work.
Tax, competition, finance and trade law probably lend themselves the most – tax the most of all since there are very few other areas where a few hundred thousand or so of legal advice can, in and of itself with practically no further action, deliver millions in savings and sometimes even refunds