One of the pleasures of Twitter for the legal practitioner is conversation with the lawyers of tomorrow. It’s a useful forum for students and graduates to interact with experienced lawyers, whether for careers advice, essay guidance, or just networking.
In return, the grown ups get the opportunity to be the respected role models they always believed themselves to be if only the world would take notice. Or, in my case, to poison the dreams of innocent youth with my sarcasm and embittered cynicism.
Occasionally one of these fresh-faced youths, awed by my special contract ninja powers, seeks my assistance on a question of academic law. Do I know any helpful cases on third party consideration? Or perhaps I could share my learned view on the various theories of estoppel?
Not because I don’t want to, you understand. Because I don’t really know anything about any of these questions, and whatever I did know I’ve long since forgotten.
Understandably, this leads to scepticism about my standing as a lawyer:
Well, occasionally I sit at a big table in a swanky law firm office and have an argument with posh people who are paid several times my salary. But that’s about the size of it, yes.
The dirty little truth is that, as a contract lawyer, I have little need to know anything much about, um, contract law.
Offer and acceptance? Nope, we write everything down precisely to avoid that issue. Intention? Ditto, and then we get important people who haven’t read the contract to sign it.
How about remedies? Who cares, just bung in a load of indemnities. Hell, even frustration has been left largely irrelevant by onerous and expensive business continuity plans.
Anyway, if it all goes wrong we’ll just get in the litigators to do the real law. They do love their cases, do the boys and girls in the expensive suits. (They love to tell us how bad our contracts are as well: “The first thing to say is that this is ghastly drafting” starts one advice we received from counsel).
So I can basically do my entire job without a single case. But let me disabuse you of any notion that this merely reflects my own poor education and skill – my boss boasts that he last read a case when he was an NQ more than a decade ago.
And it’s certainly not an inhouse versus outhouse issue. I spent an entertaining 20 minutes a couple of weeks ago listening to a senior chap from a big firm struggle to articulate the additional comfort he would take from a warranty on a point that he already had liquidated damages for.
And, oh yes, liquidated damages. The one line of case law that I do know something about is the one that starts with Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd (apologies for the Wikipedia link, but I guess it’s probably not all that surprising in the context of this post).
Sadly, this marks me out as something of a swot amongst the commercial lawyers I deal with: “No, no, those service credits aren’t liquidated damages, they’re a method of calculating the price”. Or perhaps, “But our actual loss is bound to be greater, so we need to be able to recover amounts above the LDs”.
Which perhaps goes to show that contract law as it is actually practiced is largely a matter of persuading, with varying degrees of menace, the other side to accept the position you want. Whether that position makes any legal sense appears to be largely beside the point.
So, am I actually even a lawyer? Well, I have a practising certificate that says so, which counts for something. Right?
But if I don’t go to court, or read cases, or analyse the latest legal developments, I wonder if I’m practising law in the sense generally understood? Am I (cover your eyes) adding any value for my clients?
Luckily my non-lawyer colleagues are on hand to provide me with an answer. This clause means this, right? Um, no, not exactly… We can tell the customer we’ll do this, but actually do that other thing, can’t we? Sigh…
So this is what it comes down to: I can read, I can write, and I can identify a bad idea when I see one. I jest (slightly), but in a business culture that places a premium on action, change and flexibility, you can’t take those skills for granted.
And that, ladies and gentlemen, is why I have “top lawyer” printed on my business cards.
[Postscript: I am, clearly, taking the piss in this post. But, lest anyone take me too seriously, I would like to say that I don’t intend to run down lawyers who mostly do contracts – a lot of them do a lot of real law (see, for example, Tim Bratton of the FT on intellectual property issues). Even I, to my eternal shame, have a decent sideline in data protection and consumer credit]