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.

Humour for the legally inclined and unsound of mind

I recently found at Running with Lawyers some great, real life “things not to say to the judge”:

Your Honor, if I have to call you Your Honor then you have to call me 'El Capitan'

rates as one of the saner (and still G-rated) comments.

And this little story at Craigslist (found via gulfstream) is painfully funny, definately stupid and could easily have ended in a product liability claim.

(And for the extraordinarily juvenile, this is no way to meet a girl or treat a lady. Even accidentally.)

Substantive blogging will resume shortly.

Law: it’s bad for you
(a long polemic rant, approach with irony)

Want to risk depression, mental illness and alcoholism? Want to enter a profession where the highest-paid say, if they had their time over, they’d pick a different career? Want to make money but have not time to spend it? Patrick Schultz, an academic at Notre Dame Law School, has the answer: become a lawyer in a big firm.

It’s always nice to have an academic article backing your prejudices. Schultz’s “On Being a Happy, Healthy and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession” (1999) 52 Vanderbilt Law Review 871 neatly summarizes my reasons for leaving life (or un-death) at a commercial firm, even one with nice views of Sydney harbor.

Admittedly, the American situation Schultz studies is more extreme, and he’s a jaded ex-law-firm-partner, but broadly his ideas are sound. So, let me state my bitter, vitriol-filled position: big law firms are wrong and they warp you.

The major issue is time: lawyers sell their lives in 6-minute slices, putting their working day under enormous time-pressure. It’s a reactive profession: court and client deadlines are seldom realistic when working on several cases at once. Promotion is about how much you billed clients last year. Hours, unsurprisingly, are long. Thus, lawyers complain about (at 888-9):

" … pressure to attract and retain clients in a ferociously competitive marketplace. They complain about having to work in an adversarial environment "in which aggression, selfishness, hostility, suspiciousness, and cynicism are widespread." They complain about not having control over their lives and about being at the mercy of judges and clients. … Mostly, though, they complain about the hours."

The results? First off, lawyers are unusually depressed:

"In 1990 … only three occupations were discovered to have statistically significant elevations of MDD [major depressive disorder]: lawyers, pre-kindergarten … teachers, and secretaries. Lawyers topped the list, suffering from MDD at a rate 3.6 times higher than non-lawyers ... The researchers did not know whether lawyers were depressed because "persons at high risk for major depressive disorder" are attracted to the legal profession or because practicing law "causes or precipitates depression." "

Let me take a blind stab at answering that … but it’s not just practitioners:

"A study of law students … discovered that when students enter law school, they suffer from depression at approximately the same rate as the general population. However, by the spring of the first year of law school, 32% of law students suffer from depression, and by … third year … the figure escalates to an astonishing 40%. Two years after graduation, the rate of depression falls, but only to 17%, or roughly double the level of the general population."

Lawyers also suffer “elevated rates” of emotional problems such as obsessive-compulsive disorder, clinical anxiety, “social alienation and isolation … paranoid ideation, interpersonal sensitivity, phobic anxiety, and hostility”.

Firms seldom weed out problem personalities; indeed, they are sometimes promoted to partner.

The article then goes on to state the obvious:

"Lawyers appear to be prodigious drinkers. The North Carolina study reported that almost 17% of lawyers admitted to drinking three to five alcoholic beverages every day. One researcher conservatively estimated that 15% of lawyers are alcoholics."

Now, all this depicts people unhappy with, and because of, their job. Why don’t they leave? Are the addicted to the money, despite the fact that – really – you could work fewer hours, earn less but still be very comfortable, and regain quality of life?

" … lawyers don't think in these terms. They don't see their lives as crazy. … [indeed] very few lawyers are working extraordinarily long hours because they need the money. …

"Big firm lawyers are, on the whole, a remarkably insecure and competitive group of people. Many of them have spent almost their entire lives competing to win games that other people have set up for them. First they competed to get into a prestigious college. Then they competed for college grades. Then they competed for LSAT scores. Then they competed to get into a prestigious law school. Then they competed for law school grades. ... Then they competed for clerkships. Then they competed to get hired by a big law firm.

"Now that they're in a big law firm, what's going to happen? … [They're] competing to bill more hours, to attract more clients, to win more cases, to do more deals. They're playing a game. And money is how the score is kept in that game … These lawyers have spent their entire lives … measuring their worth by how well they do in the[se] competitions. ... Money is [now] what tells them if they're more successful than the [next] lawyer ... If a lawyer's life is dominated by the game - and if his success in the game is measured by money - then his life is dominated by money. For many, many lawyers, it's that simple."

I have to say, this rings frighteningly true. Lawyers are very position-conscious creatures, and can be quite intimidated by those of higher status. I’ve been asked at a drinks function (by someone who found out I worked for a more prestigious organization), “Oh, so are you still going to talk to me?”

But have I really escaped the game now? True, I’ve dropped out of the “money” game, but I wonder if I’ve now chosen to enter the “further degrees and published articles” game.

Schultz also poses a troubling question: if you have no life outside work, how can you possibly live an ethical life, being so out of touch with social institutions? Law is a closed shop, and following the letter of professional disciplinary codes is not enough: I’ve heard it said jokingly “you only get struck off for stealing the client’s money”. While every aspect of the profession continues to be driven by a culture of time-scarce competition over money, there is little chance of its image, let alone the lives of its practitioners, improving.

Other rants on this theme: God no, they mustn't breed!

God no, they mustn’t breed!
(or, why lawyers should not date lawyers)

Yesterday I was at lunch with colleagues, and the subject of dating came up. Most there were dating, or had dated, lawyers.

I cringed. Nay, I cavilled.

I soon found myself on my soapbox expounding my theory that - while I support other people’s choice to do it - I can imagine little worse than dating another lawyer. Not that I have any stake in proposing that lawyers should date a non-lawyer, not me - no siree.

The rest of this entry could get ugly. For form’s sake I will put all law jargon in bold. (Which also goes for “cavilled”, above.)

Now, stale line that it is, I can honestly say some of my best friends are lawyers.

Of my regular commentators, four are lawyers in lawyer-lawyer couples. They are the inspiration that maybe it can work, maybe it isn’t hideously doomed, twisted and awful. But also, as they should know, they are the distinguishable case. They are in lawyer-lawyer couples who knew each other as uni students and shared interests outside law, such as debating or student publications.

Anyway, let it be understood this blog is not about them. Matches made outside the commercial firm environment do not count. Besides, I don’t want success stories here, I want anti-firm bitterness.

Right, back to the rant.

Over time, I have had a lot of arguments put to me about why lawyers could, should or do date other lawyers. One is, “Well, at least you have something in common to talk about.” Frankly, I’d hope there’s more to life than pillow talk about the scope of the constitutional prerogative writs given the winding back of statutory judicial review, and what exactly is the content of procedural fairness to be afforded migration applicants in the context of the Hickmann clause? Or whether a bankrupt can recover overpayments made under s 221YHG of the Income Tax Assessment Act, before the Commissioner of Taxation uses them in satisfaction of pre-existing tax liabilities.

Bored yet? You betcha. Sure, law can be intellectually interesting. It would be hard to justify it as a pursuit otherwise. But 24/7? Please God, no. I really hope lawyers can manage something beyond shop-talk for conversation.

But frankly, why lawyer-lawyer pairings tend to happen is lifestyle. There are two limbs to this next argument.

First, lawyers understand the hours lawyers work, and don’t take being constantly stood up personally. Non-lawyers tend to see working until 9 every night as some sort of sick choice, putting the job before the relationship.

Which, frankly, in part it is.

You could always get another job. Probably not one that pays as well or better unless you're numerate and become an investment banker. But most lawyers are lawyers coz maths wasn’t their strong point. As a couple of people have put it to me, those outside the profession (or comparable crazy industries) don’t understand that lawyers aren’t in a position to commit to anything socially. I don’t mean relationships, I mean stuff like dinner at 7 pm, two weeks on Tuesday. Commercial lawyers may, if they’re lucky, leave the office at 6.30 pm most nights. But they know there will be nights when they don’t finish until - whenever. (If they finish. I saw dawn twice. Yes, I’m still bitter.) And they have no control over when those bad nights fall.

The second limb to my argument is a consequence of the first. Working in a law firm, your social life dies by attrition. Your non-law friends get culled out. Hell, you may stop meeting anyone outside the firm. Lawyers are the only people who will tolerate in a partner the lifestyle of most lawyers.

So most lawyers see it as inevitable that they will only meet other lawyers, possibly only other lawyers at their own firm.

The vice in adopting this position, as far as I’m concerned, is it cuts off any external reality check. It deprives law-types of anyone on the outside who can say, “Um, excuse me? This is, like, nuts? You know, seriously not worth the money?” Wanting to maintain a social life with “real” people is a pretty worthy goal. No firm actively encourages its pursuit. It would be bad for productivity and team cohesion. Next thing you know you’d have lawyers with work-life balance. That’s just crazy-talk, despite what it says in the graduate recruitment brochure.

The other thing that scares me about dual-corporate marriages is just the combined level of fatigue. These really are the class of people for whom it must seem that “sleep is the new sex”.

Although maybe this is the only way to stop lawyers reproducing …

A polite and suited rebellion

I went to the “lawyers against war” rally yesterday. I have to admit it was the kind of protest I’ve been holding out for – some considered, well-articulated legal opinion about the current war. Unfortunately, other than local television, it appears to have attracted no media coverage. Possibly because there were no scuffles with police that could be turned into an emotional cliché-ridden beat-up.

This rally was, unmistakeably, a congregation of lawyers. Organisers reminded us we were standing at the Supreme Court steps and people might need to get in or out, so could we not obstruct the steps, please? Could we also remember it was a public pavement and others had a right to pass?

We spilled out onto the street, as far back from the as the tram-tracks and several people deep the full length of the Court building. I’d guess there were around 300 lawyers there at least.

We were heckled a little by some driving by, largely incomprehensibly.

I did catch: “Bob Brown, Saddam’s clown!” Which had a nice ring to it, even if it would better have been directed to a protest, y’know, featuring the Senator himself.

For reasons of space, I’m going to restrict this report to the first three speakers. The fourth was the Slater and Gordon partner derided by Janet Albrectsen for accepting a brief to monitor any Australian complicity in any US war crimes that might be committed in Iraq. (See the excellent coverage of that issue in fridaysixpm’s “Even during wartime, lawyers are the scum of the earth”.) The final speaker was the head of the community justice network in Victoria.

Of the speeches that caught my attention, Professor Gillian Triggs kicked off with a couple of simple axioms about international law that I’ll paraphrase as best I can.

First, the UN charter contains a ban on the use of force in international affairs. That ban admits only two exceptions: where the Security Council authorises action to preserve international peace and security, and self-defence.

Self defence, at international law, must be in response to an armed attack or an imminent threat of an attack. Iraq, contained as it is, provides neither.

She gave her opinion on the 14 UNSCRs outstanding against Iraq – saying that on the fairest reading she could give them there was nothing authorising the present action. (Thus it appears Professor Triggs would agree with Colin Powell’s (pre-war) view that UNSCR 1441 contained no “hidden triggers” for war.)

Her answer to the question, “what happens when permanent members prevents any resolution passing?” was one of utter probity. That situation calls for law reform, not breaking the law. These are the international legal structures in place and we are pledged to abide by them. That is what the rule of law means: working with the system, not arbitrarily abandoning it.

Chris Maxwell QC, former president of Liberty Victoria, spoke next. I’ve seen Mr Maxwell’s work in court and he has a great, punchy oratorical style.

He applauded the courage of both senior legal advisers to the Blair government who have fulfilled their professional ethical obligation to stand for the rule of law by resigning over the British position that the war is legal, and of Australian academics who have come out against the war, given – in his phrase – the present government’s “vindictive” approach to university funding.

He also made the point that – despite public opinion – the government has now irretrievably implicated Australia in this war. We therefore have a moral obligation to contribute to reconstruction, but as yet the government has pledged no funds for it.

Reverend Tim Costello, about the only Australian religious commentator whose views I can not only stomach, but admire, delivered a brief excoriation of the Christian theory of redemptive violence (that violence itself is neutral and assumes its character from whether it is used by moral or evil people), a theory he decried as “madness”. (He did not have to join the dots to the ideological-religious views of the man in the White House.)

He also spoke of the “rule of law” as the great bulwark against human insecurity, and the fear of random violence. A fear that most of the world has always lived with, and that the US has lived with since 11 September. He was very clear that he did not blame the American people for feeling that insecurity, and he did not deny that the national psyche has been deeply traumatised – but almost uniquely among western powers the US has never suffered casualties or an attack on its mainland prior to the 11 September tragedy. From that perspective, the Bush administration’s response is understandable – but entirely short-sighted. He neatly summarised the dangers of a doctrine of pre-emptive strikes with the hypothetical, “What if China feels threatened by Taiwan?”

He also referred to the appalling piece of legislation passed by the US congress pre-authorising an invasion of the Hague and a commando “extraction” of any US soldiers ever tried before the new International Criminal Court. This despite the fact that under the ICC statute the first and preferred option is that war crimes trials be conducted by the country of the alleged offender’s nationality and the ICC has jurisdiction only when a nation is “unable or unwilling” to prosecute its own. (For a semi-satirical response to this obscenity, see this site and its call for a civilian militia units to defend the Court from any US invasion.)

Anyway, Costello had picked up on the central theme put forward by Maxwell and Triggs that was sure-fire seller with this audience: the rule of law. The basic point being, of course, that if we can’t persuade the world’s weaker powers that there is a stable, rules-based system governing international affairs capable of restraining the world’s dominant powers – why would they bother participating at all?

Pre-emptive, unilateral intervention provides a clear threat to the security of weaker powers, who will respond by arming themselves with the most devastating weapons they can afford. The example already set by India and Pakistan’s efforts to join the “club” of nuclear powers. This war is meant to provide a more stable, secure world, but its unilateral, arbitrary nature promotes exactly the opposite.

What the rule of law has to offer, if abided by and promoted, is stability and some security. It will never be perfect, but it’s a hell of a lot better that the rule of force.


I hope to have better comments installed in time for (yet again) a blog next week on reconstruction and humanitarian issues in Iraq.