Wednesday, December 13, 2017

Why Do Lawyers Hate Their Clients?


I've been reading about my sociology PhD supervisor, Howie Becker. He's big in France, which is weird because he's the antithesis of theoretical. Unlike Bourdieu, Becker isn't sterile and formulaic. Instead he asks questions about how something is done. There's a rather nice article about him in the New Yorker, which for the English among you would be like being featured on Desert Island Discs. The reason for bringing up Howie is because he refers to his supervisor, Everett Hughes, the great Chicago sociologist.

Howie says, in the New Yorker piece:
“My dissertation supervisor, Everett Hughes, loved the idea that anything you see in the lowly kind of work is there in privileged work, too, only they don’t talk about it,” he says. “Later on, he went to the American nurses’ association and they hired him as a consultant, and he said, ‘Let’s do some real research: why don’t you talk about how nurses hate patients?’ There was a shocked silence and then someone said, ‘How did you know that?’

Of course, this applies across all professions. Doctors hate patients who come loaded with facts from WebMD who would rather self-medicate than take the doctors opinion. At least it looks as if doctors are doing something. You can get better with a doctor; you might even have a new heart.

Funeral directors aren't too keen on corpses either. An ethnographic piece on them (sorry forgotten the cite) showed how backstage FDs called burnt bodies, "Mr Crispy", and drowning victims, "Mr Blobby". And they were more emollient out front with the bereaved.

With lawyers it's almost the same but not quite. Yes, clients might do some research on what they need, but it is harder because legal language is so obtuse and strangled, even for lawyers. But more and more, clients are pushed into this position as legal services become expensive and over-priced for the majority of people. It's harder to see what it is that lawyers are doing for you. You could be free, but most likely you thought you were innocent anyway so no change there. Or, you have a nice, new, shiny fat contract that you can put into a draw and ignore.

Clients hate lawyers because they apparently fuck up your life (to borrow from Philip Larkin). They don't talk English. They talk down to you (because you are ignorant) and won't answer your questions. And all they want is your money but won't tell you how much until it's way too expensive, and you need to remortgage.

I use the example, with students, of going to buy an iPhone, and the Apple store clerk responding to your query about the price saying "I don't know. It might be anywhere between $500 and $1200, but by the time you get to the check out, I'll know and tell you." Not sure Apple would sell many phones that way, but lawyers with hourly billing think this is normal. It's normal for them but not for anyone else. There's just a hint of arrogance and hubris in that view.

If clients are cash cows to be milked for all they're worth, there can be nothing worse than a self-represented litigant. Now before decrying this crime against nature, try to realise that the SRL is probably there because (a) she can't get legal aid, and (b) therefore can't afford a lawyer. No wonder justice wears a blindfold. It's too painful to look at these poor victims being turned over by the lawyers and the judges who also hate them because they clog up the courts. For the lawyer it could be truly awful because the judge might direct the represented party to do the work for the SRL (for free).

It gets much worse, of course. With the move towards self-help, clients look for alternatives and now they are finding them. Legal technology companies are sprouting everywhere. Do it yourself divorce; do it yourself parking ticket appeals (with the help of friendly IBM Watson); do it yourself contracts, tenant agreements and more are all around us now.

To compound the errors these companies actually believe in User Experience and Design. UX is the opposite of what a lawyer should do, since it makes things intelligible for clients. How will you milk them if they control the milking equipment and can read the user manuals?

So there are plenty of reasons for lawyers to hate their clients. And I'm not excluding corporates here. General counsel have been getting far too uppity for their own good demanding budgets from their lawyers and, worse, bringing in their procurement departments to help price legal services.

I watched the Amazon Prime series, Goliath, recently. Don't bother as it's not that good and I only watched the whole of it for research. I'm good at suffering like that for my work. Usual thing of brilliant lawyer, a drunk, dropped out of his BIG law firm, and takes a client who is opposed by big corporate defended by said BIG law firm. Now the senior partner (William Hurt who must have been hurt to play this role) with many dark secrets and a Weinsteinish way with his female partners and associates, not only runs the case for his corporate client (nasty arms manufacturers) but commands the CEO and General Counsel not to contradict him. When the CEO and GC argue for settlement, Hurt simply says no and they roll over for him. It's fantasy but I can imagine many lawyers pining for the good old days when they commanded. Now they follow.

So, if you don't hate your clients, there's something wrong with you and you better get it checked at the local shrink. But don't worry he'll hate you too.





Share/Bookmark

Saturday, December 02, 2017

Law's Missing Institution (Mind the Gap...) A Manifesto for New Ideas in Law


(thanks to meinhardtgroup.com)

This is a picture of Hong Kong Science Park in the New Territories. It's a tremendous place and I visited it in October while visiting at the University of Hong Kong Faculty of Law. I had gone to see a blockchain startup there, but the visit made me think about why there were no law startups or businesses in the park.

My thoughts here, then, relate to a legal education conference I'm attending at UNSW, an interview on legal education with the Australian Financial Review, and an earlier post on the uberization of law.

Let me start in the mists of time...when the American Bar Foundation was trying to articulate its rationale, the director asked the question: why isn't the ABF the Bell Labs of law? It's a great research institution but it's not Bell Labs, nor should it be. It doesn't create spinoffs and it's not a think tank. But we might need other institutions to take on these roles.

I don't know what to call such an institution, but I can tell you why it's needed and what it should do. We have a massive gap in legal education and it's not purely the fault of law schools. I lay the blame on legal regulators and the judiciary who have virtually no experience in education and therefore should have no role in it. But still they are deferred to whenever the topic of reforming legal education arises.

I should add that what I propose is different from Bill Henderson's idea of a College of Legal Operations, which is based around a series of boot camps to fill gaps. I think there's a much bigger gap to fill and it's not just to do with teaching certain skills although they are necessary.

I would base this new institution in a Science Park, not a downtown office near the law firms. The reason is simple; I want the expertise of people who are dealing with ideas every day, not just those who are in business. They are important...yes.

The new institution must have three roles: first, it must engage in research and development (R&D). Law is terrible at R&D because lawyers and law firms have such short term visions about their work. When it comes to R&D in the cutting edge of law, especially technology and cognitive science and the like, law schools tend to fall behind. The reasons are that they are on the whole narrow minded about their remit, averse to interdisciplinary work unless it falls within a narrow remit, and find it difficult to think in "scientific" ways, which makes the interdisciplinary work difficult. I have reviewed countless numbers of law research grant proposals to American, Australian, Belgian, British, Dutch, and Danish research councils (which means I've forgotten the others). There have been tremendous ideas for research therein, but when they fail, they fail for a particular reason. They can't do methods. Lawyers go all wobbly when they think of methods and it shows. Lots of work to do here.

Second, the new institution must be a think tank. And by this it must engage in public debate and put ideas into the public forum. There are some organisations that do this. For example, UCL's Constitution Unit. But there's no equivalent in law of Brookings or Chatham House, and I suspect this is because lawyers think they have such close connections to power and the state that they simply don't need institutions. They do and so do the public. Policy must be informed by research that challenges conventional wisdom, so we need to go beyond the remits of law reform commissions into areas that potentially don't yet exist but will. Rights for robots is one such area. Will autonomous drones that kill civilians be able to invoke the Geneva Conventions? Caring robots in Japan will want to inherit property and not be switched off. What about land mine detection robots? Can we countenance their injuries? Stupid I'm sure to some, but...

Third, it must teach and impart new skills to law and other graduates for labour markets that will be very different from the closed and monopolistic ones that currently exist. In some ways this bit is close to Bill's college. Ideally though this should be an institution for all levels of the legal market or law, from junior to senior. The senior cadres of law are some of the most restrictive and repressive elements in law. Senior partners in law firms have virtually no incentive to change anything, especially if it involves investment. That means making less money this year...anathema. Admittedly, institutions like Harvard Law School's program for law firm leaders is waking them up but in fact it perpetuates the status quo rather than challenge it. That's not to say law firm leaders don't return home with new ideas, but I have yet to see a law firm truly and really change. Adapt yes, but what if there's a Cambrian explosion?

All three segments of the new institution must cooperate with each other. And, in fact, I'd make the faculty engage in all three sectors.

Some will say I've been on the fringes too long, in wacky programs like Law Without Walls, The Legal Forecast, and Legal Hackers. Certainly I have colleagues who think that way and place me beyond the pale. I disagree of course. We are living in interesting times: blockchain is about to fundamentally change our interactions on the internet; quantum computing will make security an even more hazardous environment; and artificial intelligence is already having deleterious effects on associates' training (or otherwise known as: what training?).

Let me put it the other way. Too many legal academics and lawyers have not ventured into the outerworlds. They are frightened of encountering savages so perhaps a dose of soma is preferable. I'm not sure we can change their minds. If not, then don't waste time. It's time to create new cohorts. But I'm reminded of an earlier story than Brave New World (1932). It's E M Forster's The Machine Stops (1909). In this 12,000 word story Forster shows what happens when people unthinkingly rely on technology to live their lives. It is chilling and prescient. Both Huxley's and Forster's stories are warnings about not facing up to challenge and new ideas; they are stories about conformity versus radicalism. And conformity doesn't come out too well.

For too many years lawyers and the law has enjoyed a monopoly. Has it justified that monopoly. Maybe at times, but not now. Technology is providing us with new ways to create, practice, and consume law, and lawyers don't have to be the only players.

I have a manifesto. I want to break law out of its current antediluvian mindset. Yes, I could move incrementally, but I believe we are in the same position that Europe was in 1848. Revolution is necessary and new institutions are essential to guide the way.

Disclaimers: I own cryptocurrency. I advise blockchain and legal startups. I am a proud Estonian E-resident.





Share/Bookmark