Tuesday, March 21, 2006

Lawyers, wildlife and metaphors

Funniest opening for a professional article I’ve read in a while:
“Most lawyers do not spend a lot of time camping in the wilderness, and probably very few have ever come face-to-face with a cougar. But confronted with that situation, any good lawyer would know in a flash that it is essential to escape without getting eaten. Risk management and goal assessment are among the profession's most indispensable skills.”

If you’ve ever gone on a hike in the States without memorising “16 different anticougar gambits” prior to departure you’re clearly not a litigator.

It’s all from piece by Steven Lubet in American Lawyer about lawyers and their excessively risk-averse and detail-obsessed behaviour, or as he puts it “cougar-spotting”.

How to tell the difference between obsessive time-wasting that pads a client’s bill, and catching the trick that’s going to cost your client a bundle?

Where a safety-first mentality has become redundant is clear in “over-lawyered” contractual clauses using every possible synonym for debt.

(“Hey Tony. This wise guy says because his contract wit’ us covers ‘arrears, bills, checks, chits, claims, commitments, damages, debentures, debits, dues, dues, incumbrances, invoices, liabilities, manifests, mortgages, notes, obligations, outstandings, receipts, tabs, tallies and vouchers’, his ‘gambling markers’ are excluded. Whaddya say?”)

The ordinarily useful attention to detail is demonstrated by a, for example “a ‘risk of loss’ provision [in real estate transactions], in case the property burns down between the contract signing and the closing date. That doesn't happen very often, but it's a cougar when it does.”

But then we have that fabulous anecdote, the one time payoff that justifies (or provokes) a lifetime of obsessive behaviour:
“A litigation partner at a large Chicago law firm told me that he always personally examines the handwriting on the significant documents in his cases, whether or not there is an allegation of fraud. That may seem pretty aggressive (and time-consuming), but he once noticed that two signatures-one on a letter and the other on a promissory note-seemed virtually identical, down to the last squiggle. Consulting a handwriting expert, he learned that no two signatures are ever exactly alike, unless one has been copied or traced. And sure enough, it turned out that a crucial letter had been forged. That successful bit of cougar hunting saved his client a couple of million dollars, and he has been diligently comparing signatures ever since.”

That’s why you’d hire a corporate lawyer, and why many sane people aren’t interested in being one. (Why didn’t the client notice the damn forgery?)

Still, it exemplifies nicely the trust no-one mentality of many law firm partners.

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