The Bizzle

"Saving your ass since 1999"

Call yourself a lawyer?

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? 

Well, no. 

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]

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5 responses to “Call yourself a lawyer?

  1. Steven Mather June 26, 2011 at 10:11 pm

    Lawyers are nothing but wordsmiths and our sole job is eloquently, accurately and effectively to write.

    Sure, some lawyers do have law in their job but they get paid more :-p

  2. Sue June 27, 2011 at 8:38 am

    Steve – to write:

    “Lawyers are nothing but wordsmiths and our sole job is to write eloquently, accurately and effectively.”

    would have been rather more eloquent and effective.

  3. Laurie A June 27, 2011 at 2:10 pm

    It is often something of a joke amongst lawyers that those dealing with commercial enormo-contracts or megabucks corporate deals don’t need to know anything about law.

    There is some truth to that, but I suspect that they, and @legalbizzle, do not get or give themselves enough credit for the body of assumed knowledge that they have acquired along the way. Ask a very junior lawyer to draft an outsourcing agreement and they would have little idea of how to start, but they may be much more comfortable with the clearly defined issues that could arise in, say, an employment dispute.

    Many technical areas of law, like frustration, only come into play when things go wrong. The whole point of a 100+ page contract is to ensure that (1) nothing goes wrong, and (2) if something does go wrong everyone knows where they stand. That detailed drafting does away with many of the complications of contract law.

    In modern legal practice, the commercial and corporate lawyers are also the last of the generalists, having to have at least a working knowledge across fields from IP law to employment, tax and property law.

    These commercial and corporate areas are also largely reliant on common law principles and free from the intervention of statute law or regulations. Those areas of law that would be considered more technical (tax, pensions or even employment law) are subject to much more legislative intervention. It is notable that @legalbizzle’s professed areas of technical expertise – data protection and consumer credit – are areas that would not exist at all but for legislation.

    That brings into play another question – given that the law relating to, say, data protection, is all written down in statute, why is that so much more technically difficult than areas where there is no statutory regulation? Surely if it is all written down it is easier than being adrift on the sea of ill-defined common law?

    If it is the case that it is the legislated areas that are more technically difficult, is this inevitable, or does it expose flaws in the drafting of statutes or regulations?

  4. Jennie Kreser June 27, 2011 at 2:28 pm

    There is no doubt that in complex legislative areas such as mine, the quality of the Parliamentary Draftsman’s product can be variable both in its intelligibility and effect. There is a case in the Supreme Court at the moment that is revolving around the interpretation of 7 words in a statute but the effect of which could wipe millions off the value of pension schemes. In listening to both eminent Leading Counsel espouse their varying interpretations, I realise just how much can hinge on a nuance here or there.

    And with the best will in the world and no matter how stunningly bright the draftsman has been, he or she will probably not be an expert in the area of law on which they are working, especially in the more complex or specialised fields. Mind you, the same can be said for some pretty bad documentation drafting too…if you think drafting a commercial contract is bad, try a pension scheme trust deed and rules!!

  5. Fiona Green June 27, 2011 at 8:08 pm

    Recent consumer credit cases also appear to swing on the interpretation of a few words of the CCA, but I rather suspect that public policy decisions are made and a suitable interpretation is then found. On this basis no drafter could ever get it “right”.
    Any lawyer who has mentored a junior and uttered the immortal words, ” Don’t they teach them English anymore?” or “What do they teach them at law school?” then recalls that someone said that to them once, is testament to the fact that lawyers get better at drafting with experience!

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