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.

Why do women leave law firms?

A recent NY Times piece is asking the right questions, but is frustratingly slim on answers.

“People explain it simply as the fact that women have children, but so many other factors play into it … ”

Great, what are those factors? Well, they mostly seem to be poorly defined and explored intangibles.

The “roadblocks” seemingly include “errant mentoring, opaque networking opportunities, low-grade case assignments or arbitrary male control of key management committees”.

But then we’re back to discussing the:

“ ‘maternal wall’ on female lawyers … built on the unstated assumption among male partners that women who return to firms after having children will automatically be less willing to work hard …”

Okay, accounting firms apparently do better:

“Deloitte & Touche … has promoted and retained women by offering flexible working schedules, leadership development and career planning programs, and transparent and dedicated mentoring ... Deloitte also maintains generous sabbatical policies and outreach practices so that women who depart the firm to raise children have an easier time re-entering the work force — and rejoining Deloitte — when they are ready to do so.”

This sounds great, but is not explored in any more detail. So what’s the bottom line problem with law firms? Billable hours. Quelle surprise.

“Research … has also identified an inflexible, billable-hours regime as an obstacle to job satisfaction for both sexes, a trend that is more pronounced among the most recent crop of law school graduates.”

“… analysts says [billable hours are] increasingly cropping up as an issue for male lawyers as well ... Billing by the hour requires lawyers to work on a stopwatch so their productivity can be tracked minute by minute — and so clients can be charged accordingly. Over the last two decades, as law firms have devoted themselves more keenly to the bottom line, depression and dissatisfaction rates among both female and male lawyers has grown … many lawyers of both genders have found their schedules and the nature of their work to be dispiriting.”

Try downright depressing. One female colleague described her first two years in a law firm as “monkey work”: an intellectually unexciting hard slog a chimp could perform.

But wait, suddenly the key problem isn’t gendered? It’s just billable hours? At some levels this seems plausible, but only if you assume some men simply don’t notice not having a life beyond work, and hence more men stick around to make partner.

So, how did one successful two-partner marriage balance work and family, especially with one child with a learning disability?

“[They] engineered this by cutting back on their social calendar, sharing household chores and making sure that at least one parent was home for dinner most nights.”

Good on them for making it work, but forgive me if I think this vision of an absentee household staffed by help and family seems a bit grim. Yet this is the best life in a law firm can offer.

One quote that really rang true?

“Law firms like to talk about running the firm like a business … but they’re running on an institutional model that's about 200 years old … Most law firms do a horrible job of managing their personnel, in terms of training them and communicating with them.”

Indeed, their sink or swim mentality coupled with a business model that assumes a 30% staff churn rate has little need for retention or engagement with its “fee earners”. The day firms acknowledge they have an actively failing human resources model is the day any of this may change, for men or women.

A hard week’s dining

Looking back over my blog, I’ve had surprisingly few entries about black tie dinners. Then again, even in the course of the usual end of term madness I’ve seldom been out to this many formal dinners.

The dining score-card for 8 to 15 March 2006 would read:

Total number of dinners out: 5, of which three were black tie dinners (one with academic gown), one with suit and tie, and the last a quite dinner with a mate.

Looking back, I came out of the gates too fast.

At the last “regular” grad hall of term on Wednesday the 8th, I had two friends come along from the Blind Wine Tasting Society. We rather lost sight (ha ha) of the fact that “blind tasting” is meant to be about sophisticated wine appreciation – not getting, well, blind.

Three people, four bottles, multiple car pile-up of hilarity ensues - lasting until 3 am that morning. My hangover, however, lasted much longer.

After a brief respite, on Friday it came time to dust the lapels of my tux, sponge the mud from the inner leg (didn’t I dry-clean this last time? no matter) and trot off to the undergraduate law society at St Catherine’s College annual dinner.

The observant will have noticed I am neither an undergraduate nor at Catz.

I was invited by my students as an external supervisor. I was touched to be asked, but flattered when I realised how few “externals” get invited to a lovely dinner for only about 30 people.

I could only suppose that to be invited you had to be regarded either as important or cool. As I’m not even remotely important, it seems my teaching style may have rendered me popular. A theory confirmed by being one of only two or so “oldies” encouraged to head over to the Catz bar afterwards – which mercifully had stopped serving alcohol.

Saturday saw me hand washing my one formal shirt and heading off to the feast of St Edward King and Martyr – yes, really – at Trinity Hall. This was my college’s thank-you dinner to those who’ve supervised (tutored) Hall students over the year. Three courses (including a fabulous saddle of Spring lamb) with wine, a cheese course, a digestive break where you stand and go into another room, then chocolates and fruit with claret, dessert wine port and coffee.

Afterwards the remainder of the wine, along with scotch and, oddly, beer was on offer in the Senior Combination Room – and it was good scotch.

Highlights of the evening included finding myself chatting with real enthusiasm about how my students were getting on, and the odd jibe about having been one of the elect invited to the Catz dinner.

Tuesday I headed out on the town with a friend who’s been to busy helping to write a UN report on top of her PhD to be seen much this term. After a decent dinner at the chain bar “Bar Ha Ha”, we repaired to the bar at Trinity Hall for our second bottle of vino and law chat.

Which kept me nicely in form for the black tie graduates end of term dinner at Trinity Hall on Wednesday, at which I neither drank excessively nor stayed out too late. No, really.

Anyway, so much to say that if I haven’t been blogging, it’s because I’ve been too busy eating.

When the West Wing Fails You

Other than the odd burst of mindless flag waving, I love “The West Wing”. So, I was sitting down watching season four tonight, the episode where they decide – a little belatedly – to take legal advice on the consequences of assassinating a terrorist leader.

A terrorist leader who also happens to be an accredited diplomat to the US.

The discussion runs something like this.

President Martin Sheen: “Article 51 of the UN Charter allows a nation to wage war in self-defence.”

Lawyer: “The article is predicated on openly declared wars.”

Pres: “The world doesn’t work like that anymore.”

Lawyer: “The law does … this could be a war crime.”

No, no, no, no! Bad Aaron Sorkin, bad bad man!

Admittedly, I just supervised undergrads on this stuff, so maybe I have a bee in my bonnet.

Anyway: the UN Charter does not require declarations of war. Article 51 does not even mention war. It talks of an “inherent right of … self-defence if an armed attack occurs.”

Can you claim self-defence against terrorism? Well, it’s controversial. But I’d say after the Security Council in Resolutions 1368 and 1373 recognised the US’s right to act in self-defence following September 11, the answer has to be “yes”.

How far that right extends is a question for another blog.

The idea that law is graven is stone, anachronistically resistant to change and irrelevant to current concerns is also wrong. There is some scope for progressive re-interpretation of the Charter’s meaning in light of subsequent practice.

For example: there is, strictly speaking, no “veto” in the Security Council under the Charter. Certain votes require the “concurring vote” of all five permanent members. So there's at best a default veto: even an abstention by a P5 member should torpedo a motion requiring a “concurring vote”.

In practice, only express negative votes are counted under this rule and a blind eye is turned to abstentions. Despite the words plain meaning, their legal meaning has changed through their use in practice.

So, similarly, there’s nothing stopping the content of the words “self-defence” evolving over time.

So is such an assasination a war crime? Whether civilian leaders are legitimate military targets in a war is a debateable issue, as is the application of the law of armed conflict to a war on terror.

However, assassinating a diplomat returning to his own country is, one would think, rather against the spirit of the Vienna Convention on Diplomatic Relations.

For a usually relatively intelligent show, sloppy errors teenage delegates to a model UN should be able to pick up.

Only in the UK ...

I am a big fan of BBC weather online. However, only the UK could need an icon for "sunny intervals with scattered snow."

Which was the weather Thursday before last: hence the photo below of my outside door.

Snow in March. Damned British weather.

Great powers and legal subjects in the making of counter-proliferation law

It seems the nuclear club just got bigger. Certainly, India’s had nuclear weapons for years and has stood deliberately outside the NPT system. However, the Bush administration’s effort to accommodate its civilian power program in exchange for it being quarantined from military research and subject to IAEA safeguards is an interesting step towards containment and tacit acknowledgement of nuclear power status.

In part, the US is probably interested in seeing India (the world’s largest democracy, after all) become a counter-balance to China. What I’m interested in, though, is what the non-proliferation tells us about the structure of power in current international legal relations and law-making.

Gerry Simpson’s argument in his excellent Great Powers and Outlaw States is that the great powers adopt an approach to international law based on whether they think their power is waning or still growing. Those that are aware their era may be passing will favour a rules based system that attempts to cement their current position in place. This was the United Kingdom’s aim in negotiations over the UN Charter. The Security Council was a deal between a declining great power (the UK) and two still-rising great powers (Russia and the US). France and China were added essentially as afterthoughts: China in particular as a regional balance against Japan.

Thus, it is scarcely surprising in an era when the US feels its power to be in the ascendant it’s academics, politicians and policy-makers often seem impatient with current international law and want to push the envelope (far more so than their diplomats and generals). Meanwhile European powers cling to UN procedure as the touchstone of legitimacy. It was ever thus.

Simpson also puts the point that great powers politics usually results in several tiers of international rules. Roughly speaking, the great powers claim certain privileges or exemptions not available to others, the mass of law-abiding or “civilized” States live within the constraints and protections of the law, while demonized “outlaw” States are denied the protection of the law but are also subjected to an intensely discriminatory regulatory law (sanctions).

How does this play out in counter-proliferation? While there has been much talk of the US “hegemony” or a “unipolar” world, I do not think the US is claiming any special privileges as a sole super-power. Despite the rhetoric of the “war on terror” the US has not been prepared to claim unique rights only it may exercise, or declared a unilateral policy of great-power intervention (à la the Brezhnev Doctrine). Iraq looks increasingly exceptional: the final chapter of a previous era of intervention, not the herald of a new dawn of global regime change. It is an exception that proves no particular rule.

The US is acting, in fact, far more like a great power in a phase of consolidation rather than expansion. Like a consolidating great power it is interested in creating new, and discriminatory, legal structures that favour its position.

It does not openly disclaim that it is a subject of the law, but it is far more interested in being the first-among-equals within the club of law-makers. Legislators can make laws that apply equally to all, but will never realistically apply to them. “The law in its majesty forbids both rich man and poor man from sleeping under a bridge.”

It wants a system that preserves WMD among a club of “responsible” weapon holders and that prohibits others from obtaining them. Logically, this now dictates either sanctioning India, or brining it further into the fold. India, for its part, may finally have stepped closer to the seat at the law-making table it’s been after.

Next: the law-making club and the unequal international law of non-proliferation.