August 16, 2009
Stuck In Legal, Responses
Well, I certainly struck a nerve with my Stuck In Legal rant/post last week. As of now, there are 32 comments on the blog — my typical post generates 0-1 — and I've picked up between 50 and 75 new followers on Twitter, probably mostly because Fred tweeted about the post.
Most of the comments on the blog were cheering me on; a couple were from lawyers, one well reasoned and another just a counter rant against stupid business people that had one or two good points buried in it. You can certainly click through the link above if you want to read them.
But two comments didn't get put on the blog, which I thought I'd post here. Keep the good thoughts coming on this topic. It's an important one.
First, Jonathan Ezor (a professor of law and technology) posted his response — not a rebuttal — on the Business Week blog here. He makes some very good points about how both sides, businessperson and counsel, can work better together to eliminate a bunch of the hassles I noted in my original post.
Second, Joe Stanganelli, a lawyer, emailed me the following, which was too long for my Intense Debate comment software to handle:
In defense of my profession…
•Why companies' legal departments or outside counsel aren't directed to be as efficient in doing their work as their other departments
How exactly do you mean? I'm not sure this is true. Given the average amount of hours our profession works as it is, we *have* to be efficient.
I can tell you, however, that a huge pet peeve of us lawyers is when our clients essentially say (typically when they’re being billed hourly), "Gee, I want an answer to this very complex legal question that will require a lot of research because no statutes or case laws are directly on point, but don't spend a lot of time on it."
This is a bit like saying, “Look, don’t spend a lot of time on this transplant…I’ve got a meeting in an hour, and I’m trying to save money besides."
Also bear in mind that lawyers are not widget-makers or assembly line workers. We aren’t even (usually) executive decision-makers. We are in the knowledge and information industry. We read, we think, and we write. If you can provide us with some tips as to how to read, think, or write more efficiently, we would be delighted to hear them.
•Why companies insist on using their standard form of agreement if they're going to staff a legal department to review contracts anyway (this clearly wouldn't work if everyone in the world behaved this way)
The standard form of agreement has already (presumably) been determined by the company’s legal department to be the best form for the company's interests as part of the legal department’s careful legal analysis (i.e., the job they are paid to do). Often, however, other companies, clients, etc. don’t use the standard form, or send their own form, or modify the standard form, or any number of other idiosyncrasies can happen with the execution of a contract. All of these things have legal ramifications and have been the subject of past litigation.
•Why lawyers insist on answering questions with "because that's how all our contracts are" instead of applying their brains and logic to situations
(I'll try not to take too much offense at that last part.)
This generally happens because the answer “because that’s how all our contracts are” is a lot easier to say than to give the CEO a crash course in contract law. It’s not fair, but it’s true.
A good lawyer, however, should at least be able to explain to boil it down to a few bullet points without being arrogant about it.
•Why business people seem to have no leverage with their legal departments, especially in larger companies, therefore surrendering the negotiation of business terms and the timing of relationship launches, technology usage, etc. to lawyers
This criticism is, if you’ll forgive me for saying so, a bit mind-blowing. It’s not a matter of “leverage" at all.
Companies have legal departments as a preventative measure because they recognize that the best time to hire a lawyer is before you actually need one. Most of law practice, in fact, is this “preventative law” and compliance work. It saves the client (in this case, the company) time and money down the road by staving off lawsuits and liability.
These lawyers are in the business of protecting their clients from themselves – which the clients willingly pay them for because the clients (usually) recognize that they did not go to law school, pass the Bar Exam, and gain years of experiencing practicing law.
So when a company wants to launch a potentially harmful product via a distribution agreement that allows the distributor to get more money than he should because of a technicality, the legal department has to step in and tell the company, “YOU WILL GET SUED IF YOU DO THIS AND LOSE X AMOUNT OF DOLLARS!!!” or they aren’t doing their jobs.
A lawyer is a counselor – an advisor. Any leader who totally disregards his advisors is not a good leader.
Again, this is not a matter of not having leverage with legal departments; it is a matter of not being able to change the law.
Please don’t shoot the messenger.
•Why in-house lawyers make the same dumb changes to wording and formatting that lawyers who bill by the hour make
The law is the law is the law; how the lawyer gets paid does not impact what the law is. Those “dumb changes” are tried and true terminology that mean certain things in the courts and (usually) all the lawyers and judges know what they mean. If the lawyers left it alone, your document or contract would potentially (perhaps even likely) mean something totally different.
Overall, please recognize that lawyers – at least in the legal department / “preventative law” context that you discuss – are in the risk management and compliance business. They don’t make the law (at least, not the ones who work for you); they’re simply the guides who are navigating you – the layperson – through the legal system (one that took us years to understand).
After all, if you were blind, and you had a seeing-eye dog, would you get mad at the seeing-eye dog for not letting you cross the street when it’s a green light and a Mack truck is coming down the road? Would you think that seeing-eye dogs were conspiring against you to not let you cross the street?
I will say this, though: Joshua Baer makes a great point. A good lawyer should be able to provide you with a list of options, and explain (at least in a rudimentary fashion) the dollars-and-cents consequences of each one. As J.P. Morgan said, “Well, I don't know as I want a lawyer to tell me what I cannot do. I hire him to tell how to do what I want to do.”