Anniversary: Jack Cade--No Wait, Listen...

The 463d anniversary of Jack Cade's rebellion, the prompt for the most famous lawyer jape of all time, infra.  And as good a time as any to record that it's really a compliment.

Cade:
I thank you, good people—there shall be no money; all shall eat
and drink on my score, and I will apparel them all in one livery,
that they may agree like brothers, and worship me their lord.
Dick:
The first thing we do, let's kill all the lawyers.

Bada boom.  So Shakespeare, Henry VI Part 2, Act 4, scene 2, 71–77, and lawyers have been to catch up with it ever since.  I do think they could use a more effective publicist, though.

Not Your Grandfather's Estate Planning Practice

Mr. and Mrs. Buce ventured forth this afternoon to their friendly neighborhood estate planner: after 15 years, time for new wills. We'd never met this guy before but he came highly recommended as Palookaville's finest.   All seems on track now and we forecast a satisfactory resolution, at least providing we stay alive until signing.  But set that aside.  I want to talk about how things have changed.

Specifically: from the website (sic) one would infer this was a simple person law office but no--what you find is a capacious free-standing small office building showcasing services in Estate Planning and Eldercare.  Of course I know what "eldercare" means (or I think I do), but when, exactly, I wonder, did the word enter the language.

And showcasing is only the beginning.  Inside you find a lady at the front desk (of course), but also one or more secretaries and by my count, at least four people who bill themselves as "eldercare paralegals."   Our guy was running a little behind so I got a chance while cooling my heels to get some sense of how an "eldercare paralegal" spends her (his) day.  So far as I can tell, they spend a lot of it on the phone, trying to disentangle intricate issues about bank account withdrawals, management at nursing homes, perhaps a bit on insurance claims.  Could be satisfying work, solving problems, but it sounded pretty onerous and (I suppose this goes without saying) well above my pay grade.

But it struck me also how much this place reminded me of the office of the lawyer who does Chapter 13 cases: intense attention to big problems with (seemingly?) small numbers.  Or the tax accountant.  Or your doctor's office, where you can usually hear the biller on the phone with the insurance company---some insurance company, there are so many of them--trying to figure out what kind of claim goes where (or nowhere). 

And that prompted me to wonder: is this what "the service economy" is all about.  Or rather, how much time and energy and money--and employment--go into trying to cut through those problems of "paperwork" (as we used to call it) that we haven't yet learned how to  computerize?

Oh, and he charged by the minute, and the receptionist suavely suggested we might want to settle our bill before we went out the door.  Modern in every way. 

What it is about Paralegals

I assume Marin anticipated the sh*ststorm s/he ran into with the post dumping on paralegals (ha!  I see it has zero "likes"!), but I think a lot of the commentary misses a key point.  It's  not just the smug ignorance and the aristocratic hauteur.   The real thing about being a paralegal is that it's an entirely different skill set--one that does not, on the whole, pay nearly as well as law grads dream of being paid, but one that lawyers dispense with only at their peril.

Good lawyers come with a variety of skills (though it is rare that any one lawyer has all of them--like the title role in Hamlet, the script is just too rich for any single actor to explore it all).  One skill most of them do not have is picking up the pieces.  Good paralegals are great at picking up the pieces at assembling the data, at not-missing the unmissable deadline.  We've all known--okay, I have known--good lawyers who travel with their paralegals as if joined at the hip like Steve Wilson and Lorelei, one doing whatever it is that he does and the other making it all happen.

I suspect I am treading on the outer reaches of a much larger issue here: the whole universe of the "second banana," Sancho Panza, Doctor Watson, Bunter, whatever.  But damn, it's real.    Top executives, the public face of the company--particularly the creative types (eg, fashion designers), but just about anybody highly visible front person--squint a bit and you'll see that almost anybody in this situation operates with a less visible sidekick who keeps it on track.

Women readers, if I have any, are seething at the moment, ready to yell hey!  That is precisely the kind of condescension and trivializing that kept my female ancestors in their cages for so long!  I can sympathize and there is at least a large kernel of truth in the view.  I'll try to sidestep it (at least in part?) by insisting that the second banana need not be a female.  Certainly all those career military noncoms who have shepherded countless generations of officers were not female, nor even, come to think of it, remotely feminine.  And FWIW, perhaps the most interesting second banana in literary history is Pallas Athena in the Odyssey, always pullinig Odysseus; chestnuts out of the fire.  I also leave aside for the moment the contentious question of how many women took up the second banana role because it was thrust upon them, not because it was their natural metier.

Sadly, one way to get insight into the matter is to watch what happens to great paralegals when they get fed up with working for a jerk and decide to go to law school themselves.  Some of them do fine, of course, but a lot of them find that their particular skill set just doesn't travel very well and that they have given up  career they were pretty skilled at and secure in for one in which they can find no natural home. One class of second bananas (bananae?) who have famously understood this are the "clerks" ("clarks?") who run/ran barristers' chambers in the classic British law-model.  They learned to practice an aesthetic of 'umble; they also knew how to run rings round their betters, and to make them jump through hoops.  Maybe good paralegals know the same thing and aren't telling us.  

A Philosopher on Lawyers (or Law Professors)

Being neither a serious nor a second-rate philosopher, I may not be the right person to adjudicate this little dustup:

[L]awyers. unlike serious philosophers [but. in this regard, quite like second-rate philosophers], do not actually seek to demonstrate the positions they defend. Rather, they aim to assimilate issues with which they are concerned to the existing structure of laws and precedents in hopes that courts will construe those issues in ways that favor their clients. For this purpose, lawyers need a large and versatile armamentarium of concepts. categories. distinctions. and argument-fragments with the aid of which they can articulate intuitions. convictions, or interests to which they are already committed. Both utilitarianism and cost/benefit analysis provide just such weapons to advocates of the left or the right, none of whom can be said ever to prove their positions, but all of whom gain argumentative leverage from their ability to embed their advocacy in a preexisting proof structure.

So Robert Paul Wolff. The first few sentences sound about right to me. But when he gets to the end, I think he may be talking more about law professors than to the person who tends to (as I think Rumpole once said) "a spot of indecency down at the Uxbridge Magistrate's Court." Even the superachievers who served apprenticeship at the low philosopher's table, once they get out there moiling for a buck tend to forget the refined the eminence of the seminar room. Or if they recall their academic roots at all, it is perhaps most likely to take the form of an Adam Smith necktie.

Missouri?

I had occasion to check on the number of lawyers per capita. state by state. Sure enough, there are the usual suspects--Washington DC ahead of the pack (by a factor of 13!). New York Delaware, Massachusetts. California only 14th, but wait--California in a tie with Missouri.

Say again, Missouri? What is it in Missouri that requires 10.9 lawyers per capita?

Update: But see Bob Lawless comment below explaining why the number is bogus.

What's a Lawyer Gentleman to Do?

I just stumbled on this problem in an old ethics opinion issued by the California Bar Association:

The attorney was retained to represent a carpenter who had performed labor and supplied materials for an addition to a home. On the client's behalf, the attorney brought suit against the owner to foreclose a mechanic's lien. The action was contested and, after a trial of three days, the plaintiff obtained judgment. The defendant did not pay the judgment promptly. The attorney caused a sheriff's sale of the defendant's home to be held. Under the particular state of the law and the facts, no actual notice to the defendant was legally requisite to the validity of the sale and neither the defendant nor defendant's counsel in fact knew of the sale. The plaintiff bid in the property for the amount of the judgment, and thus became the owner of the defendant's home, worth much more than the amount of the judgment, subject only to the defendant's right to redeem within a year.

Some time later the defendant's counsel wrote a letter to the plaintiff's attorney, enclosing the defendant's check for the amount of the judgment. The check was tendered in full satisfaction, but it was legally insufficient for the redemption of the property since it did not include the expenses of the sheriff's sale, the existence of which was still unknown to the defendant and defendant's attorney.

The question presented is whether the plaintiff's attorney could properly have refrained from any action at that time, leaving the letter unanswered and the check unnegotiated, in the hope that the period of redemption would expire before the defendant or defendant's counsel became aware of the fact that their tender had been insufficient.

That's from Formal Opinion No 1967-11. So what's a gentleman lawyer to do? The opinion goes on to say:

[U]nder [former] canon 15 of the Canons of Ethics of the American Bar Association, an attorney must zealously advance the interests of his client, but not by using "any manner of fraud or chicane. He must obey his own conscience and not that of his client." One of the obligations of conscience to which the lawyer must conform is stated in [former] canon 22: his conduct with other lawyers "should be characterized by candor and fairness." [Former] canon 29 states that a lawyer "should strive at all times to uphold the honor and to maintain the dignity of the profession . . ." All of the canons are commended to the members of the State Bar by rule 1 of the Rules of Professional Conduct of the State Bar.

Yes, yes, but what's the answer?

In the opinion of the Committee, it would not have been candid or fair to opposing counsel to keep silent under these circumstances.

The interesting wrinkle is that the committee concedes it can't find any specific peg to hang its doctrine on. The committee bandies around phrases like "intentionally deceptive" and ""unjustly enriched" and "grossly unconscionable." But any firt year law student knows that "unjust enrichment" is a doctrine of almost unlimited malleability. And "grossly unconscionable" is a phrase you use when you don't have anything else.

I wonder if an ethics committee would reach the same result today. My friend Rex, who knows a lot more about this stuff than I do, says he suspects not. Yet in the bankruptcy court, where I have spent some of my (professional) life, my guess there are a lot of judges who would go ballistic if they thought someone was running this sort of caper in front of them.

Perhaps a more interesting question: if the lawyer does disclose is he breaching his fiduciary duty to his client?

Lawyer Jobs and Earnings Again

Re my discussion of attorney earnings and job satisfaction the other day, I find that one tiny link from AbovetheLaw.com increases my daily hits by a factor of about 10. I suppose it's flattering, although a humbling reminder that roughly nobody gives a rat's patootie about this simple barefoot country weblog, and whether I keep school or not.

On the other hand, while we're maundering on about the difficulties of the life of the lawyer, we might get a bitch slap reality check from the good folks at CareerCast.com, as reported in the Wall Street Journal, with their annual survey of "best and worst jobs"--a survey which I assume is every bit as reliable as the US News ranking of law schools (joke--ed.). For ATTORNEY at #80, we have a median income of $111,000, with a range from $54,000 go $171,000. For PLUMBER at 150, we have a median of $46,000, with a range from $28,000 to $49,000. So if that plumber makes $425 for 45 minute, he's billing just 81 hours a year. No wonder he's got a beer belly.

For comparison, general practice physician weighs (#128) weighs in with median of $162,000, just a tad under the lawyer's max. I do note that the physician's maximum is only 29 percent above the mean; the comparable number for attorneys is 54 percent, confirming my suspicion that the spread is greater for lawyers than for doctors (downside spread is just the mirror image--attorney min is about 51 percent of the mean; for doctors, 75 percent)..Oh, and surgeons (#136) weigh in with a mean of $300,000, so it looks like Carla made a smart move to choose Turk over JD.

Update: And h/t to David for this link to an opinion piece by a guy who thinks we need a tighter lawyer oligopoly.

The Value of a Law Degree

A commentator at Above the Law writes:

I never thought I would see the day where a plumbing degree from Ashworth College (an online institution for the non-erudite) carries more value than a law degree. I recently paid my plumber $425.00 for 45 minutes of his time. Clearly, this handy chap makes more money than most working attorneys in this nation.

Two points: one, he heeds to get out more. The potential top income for a lawyer has been (and remains) quite high, compared to the population as a whole (if not compared to, e.g., investment bankers). But the mean is usually rather lower than the commentator seems to realize. Every year some law grads go off to be parole officers, high school teachers, whatever--some willingly, some because it is the best alternative on the table. And even now as we stand here, some lawyer is "practicing law" in a terry cloth robe at the kitchen table. Again, that may or may not be a bad thing, but it's not the kind of thing that deans and alumni offices like to hype, especially not when they are trying to reel 'em in for $40,000-a-year tuition.

Two, he needs to take the long view. The blip in time during which a law degree was a road to riches--that blip is about the same length as the blip during which a guy like Homer Simpson could support a wife and 2.3 kids in a nice home in the suburbs on a factory wage.

I think the inflection point was the moment I started law school--fall of 1963--when the dean who welcomed us offered congratulations because we were moving into (as he said) an underpeopled profession. He was right: law hitherto had just not been that dazzling a choice. You really had to want to be there.

Sepecificaly: lawywers often had to scrounge for work in the Depression. There was more work after World War II but also more lawyers. In the 60s, wo things changed all that. One, biglaw jacked up its compensation schedules for beginning associates, enriching the associates themseves and setting off a ripple that rolled through the market as a whole. Two, the Federal government started to fund legsl services for the poor.

[A third factor that drew a new wave of applicants to the law schools was the civil rights revolution in the South, which added an aura of prestige and respectability to law which it had perhaps never enjoyed before. This surely increased demand for places in law school, although it didn't affect compensation directly.]

One unhappy consequence was that for a generation now, we've had a lot of kids in law school with no special vocation to be there, but who were looking for the big bucks. Surely that motivation is gone, or at least severely constrained. The Pope has been neard to say tht he wouldn't mind a smaller and stronger church. Who knows, the current uproar may induce just such a revision in the practice of law.

For a much more fully informed discussion, go here.

Three things changed

Engineer Terrorists

John flags me to the Slate piece this morning, asking why (and whether) so many terrorists are engineers. The answer to "whether" is apparently "yes;" the anecdotes hold up to more formal scrutiny. The answer to "why" remains, necessarily more speculative, and Slate feels free to speculate away (they do cite evidence that engineers are "more conservative and religious" than other scientists, but this only begs the question).

I will add two cents. I'm not even remotely an engineer myself, but I went to law school with quite a few and a find myself teaching quite a few in the law school. In this (skewed?) sample, I see a lot of people who have worked hard to develop a skill and then find themselves faced with the prospect of spending their lives in not-very-interesting jobs with lots of cubicles and a fairly low salary ceiling--that, at least, is the sort of thing that drives them to law school. A corollary is that they often find themselves (as they see it) ruled by idiots--find themselves taking orders from people they see as stupider than they are. Think Dilbert.

They may well be right in this view. Think Dilbert again. Of course it is equally possible that these bosses have skills that the engineers don't have and which to the engineers are therefore invisible.

Afterthought: Ignoto tells me I need to elaborate on that point about engineers in law school. Fair enough. My experience is that the engineers often do well, but often not as well as they expected, or think they deserve. My first dean told me that this is because engineers are not good at what lawyers need to learn how to do, and that is to cope with ambiguity. Might be. Of course a question would be whether we do in fact teach law students to cope with ambiguity.

The Mini-MacArthurs

I'm as impressed as the next guy with the trend among mega law firms to offer prospective (or junior) associates hard cash to just go away for a while. Sure, it sounds like subsidized fun and games--"Just remember $65,000 goes a long ways in Mexico." But you could think of it also as sort of a Mini-MacArthur Grant. Go solve the Collatz Problem, for example. Or bind the feet of a leper. My recollection is that some pretty impressive scholarly careers were founded in the 30s by people who stayed in school because there wasn't any point in leaving.

Go ahead, do some good. And it might even look good on the resume.

("MacArthur Grant," says Patrick--"two of my favorite generals.")

"Oh, Sure," He said, "But You'd Be Surprised..."

The headline, from a law recruiting newsletter, makes perfect sense:

You Need to Stop Competing and Seeing Differences Between You and Others

Couldn't be righter, thought I. The first rule of monopolistic competition: product differentiation to create economic rents. But read on: I can't decide whether this guy is:

• A hell of a salesman; or

• A manipulative creep; or

• A sociopath.

LIke I say, read on:

When you are in the recruiting business, what typically happens is that law firms will call you in a very formal way to tell you they have no interest in a candidate of yours. The conversations will typically last no more than 30 to 45 seconds.

“We are calling to let you know that we have no interest in John Smith,” they might say.

“Thank you,” would be the standard response.

After several weeks of this I began to feel that the entire situation was somewhat absurd. This is what recruiters do all over the country. I decided that the best thing I could do was mix it up.

“We’re calling to let you know we have no interest in John Smith,” a caller might say. The callers were typically women in their mid-20’s to early 30’s who were called “recruiting coordinators” inside law firms.

“You know, I was just outside having my third Diet Coke in the past hour and I realized that I have not heard your voice in some time. I really like your voice, how are you?”

“Fine,” they might say, still a little stiff.

“I am not sure how much longer I am going to be doing this recruiting thing. It is really exhausting. Law firms are really uptight. Do you enjoy making all these calls? It must be a real buzz kill just calling a bunch of recruiters all day. I cannot believe you and I are doing the jobs we are doing.”

This is what I would do with every caller. Eventually, I would get into my personal life and they would start to talk about themselves as well. A few months into this I was astonished when some of these women called me on the way home from work on their cell phones just to chat about random stuff, unrelated to work. One woman’s husband was going to be building a deck on the back of her house that weekend; one man who was a recruiting coordinator was going sailing; another girl was leaving her job because she wanted to ride a motorcycle across the United States.

I did the same thing with my candidates. (I actually ended up marrying one of them a few years later.) My candidates and I would talk about the most random stuff. Only about 1-2% of my time on the phone with my candidates and law firms was ever about anything having to do with actual business. I enjoyed what I was doing and made numerous friends. I looked at the entire process as something that was meant to be fun, establishing connections and nothing more.

Prior to becoming an attorney, I had been an asphalt sealing contractor around Michigan for over 7 years. Much of my job involved going door-to-door and selling my service. Someone I had never seen before would answer the door and I might say something like:

“Hi. I’m here to sell you the service of putting some asphalt sealer on your driveway but I am not in a very good mood right now. My girlfriend from school is working in Washington, DC and she just broke up with me so she can see other people this summer. I’m not too happy about it.” This is the last thing people expect from a salesman.

I would show up at the home of the person, well dressed and looking professional, and invariably the person would start talking to me about my personal situation and offering me advice. I would never have to sell the person anything. I would slip in how much the service was going to cost and the person would always agree. The next year I would show up at the person’s front door and they might ask me about my personal life and I would tell them what was going on, and they would do the same thing. Using this particular method of selling asphalt sealing, I was able to become probably the largest residential asphalt sealing contractor in Michigan in less than a couple of years. It is all about treating people as your friend.

I never talked about the service. I just disarmed myself, exposed a vulnerability of some sort and let the person start consoling me and offering advice. I liked getting the advice.

"Oh sure," as the old punchline has it, "but you'd be surprised how many go to bed with me..."

Lawyers: A Guilty Secret

Harvard professor (and Supreme Court justice) Joseph Story lets out a scandalous truth about practicing law--you don't have to be all that smart:

Whoever advances for safety must advance slowly. He must cautiously follow the old guides, and toil on with steady footsteps; for the old paths, through well beaten, are rugged; and the new paths, though broad, are still perplexed. To drop all metaphor, the law is a science in which there is no substitute for diligence and labor. It is a fine remark of one, who is himself a brilliant example of all he teaches, that "It appears to be the general order of Providence, manifested in the construction of our nature, that every thing valuable in human acquisition should be the result of toil and labor." But this truth is nowhere more forcibly manifested than in the law. Here, moderate talents with unbroken industry have often attained a victory over superior genius, and cast into shade the bright natural parts.

--Joseph Story, A Discourse Pronounced Upon the Inauguration of the Author,
As Dane Professor of Law in Harvard University (1829)

Found this in a bin full of old notes. The internal quotation comes from his peer Chancellor James Kent.

Meta note: The Kent reference was not in my notes. I found it in a nanosecond in Google Books, via Google Search here.

Exam-Time Exhortation

Some exam-time cheer:

To suffer woes which Hope thinks infinite;
To forgive wrongs darker than death or night;

To defy Power, which seems omnipotent;

To love, and bear; to hope till Hope creates
From its own wreck the thing it contemplates;

Neither to change, nor falter, nor repent;

This, like thy glory, Titan, is to be
Good, great and joyous, Beautiful and free;
This is alone Life, Joy, Empire and Victor!

—Percy B. Shelley,Prometheus Unbound IV 57

Tom Hanks Gets One Thing Right

Tom Hanks hates lawyers, and there’s no accounting for taste, I guess. But he adds:

They’ve got a crappy job, man. That’s like doing homework for a living.

You know what—he’s got us on that one. And the hell of it is, some of us like doing homework for a living. How pathetic is that?

Link.

Let Me Tell You What I Really Think, Judge...

There’s an entertaining discussion under way over at Above the Law, about a lawyer who told the (bankruptcy) judge she was “a few French fries short of a happy meal” (link). She is threatening to jerk his right to appear in her court.

There’s a huge amount of chatter in the comments at ATL (boy, doesn’t anybody have to work for a living any more?), but unless I overlooked something, it missed at least three points that seem to me to be important as lessons, and also for context.

• As the saying goes, this is “worse than a crime, it’s a blunder.” I don’t suppose there is a lawyer in practice who doesn’t think that some judge (maybe all judges?) is(are?) a few tacos short of a combination plate.But the secret of success in law is to learn to manipulate people who have power over you.I can’t imagine how this outburst gets you closer to the result you want (but cf., next bullet point).
  

• Is it just bankruptcy, or is it happening everywhere? I have a sense that you see more and more lawyers mouthing off to judges, like junior high schoolers to the hall monitor. The attitude seems to be:I make a million a year, you top out at around $160,000—why should I listen to you (but cf., previous bullet point).

• The judge has ordered a full-scale hearing, with formal notice to almost everyone in the galaxy. I can’t quarrel with that approach, but there is another strategy: simply rule against him on all issues of fact. Pure decisions of fact are virtually untouchable on appeal, so he goes home empty handed. He might not even know what hit him—although I concede, it would be more fun if he did.

--Young man, are you trying to show your contempt for this court?

--No, your honor, I’m trying to conceal it.

Optimist

"Some readers will find this book very readable."

--The first sentence of the Preface in
Robert B. Dicke, Financial Statement Analysis
and Business Valuation
for the Practical Lawyer (ABA 2006)

Fn: Actually, he may be right. It's a very good and helpful book. Not as good as this one, though, heh heh, and a lot more expensive.