A lawyer of my acquaintance tells a story about a difficult contract negotiation. The discussion had turned to a point where the other side wanted a strict obligation, but my guy could see some practical difficulties for his client.
So he spent some time explaining what those difficulties were, and how a reasonable endeavours obligation would give both sides comfort. And at the end of his exposition, the other side’s lawyer turned to his colleagues and said, with feeling, “See? I told you they weren’t going to provide the services!”
This kind of thing is depressingly familiar. I was once shouted at by a lawyer for a very well-know retailer, for having the temerity to suggest that we would find it hard to guarantee that all of our call centre agents would read the script word for word in every call: “I can’t believe you’re saying that you won’t comply with your obligations! Are you providing the service or not?”
For some negotiators, any attempt to (as they see it) weaken an obligation is the same as not wanting to offer any kind of assurance at all. Practical arguments cut no ice here – you’re either doing it all, or you’re not doing any of it.
You could put this down to tactics, of course. But the strength of emotion apparent in the above examples suggests that it’s more than that, for some people at least.
And (although perhaps I am expecting too much here) I would argue that a lawyer who allows their client to persist in the belief that a reasonable endeavours obligation is the same as not performing at all is not advising that client to the best of their abilities.
It is, after all, clear to anyone who applies a few minutes of thought that there are many steps between doing something 100% of the time and not doing it all. There is, for example, the obligation to do something unless that thing is impossible (we might call this “best endeavours”), or the obligation to try as many different ways to do the thing as might be practical given constraints of time etc (“all reasonable endeavours”), or even the obligation to do the thing provided that it is not unduly inconvenient or expensive to do so (our old friend “reasonable endeavours”).
And applying that few minutes, or even hours, of thought is precisely what lawyers are supposed to do. Binary thinking and unexamined positions are not what our clients need or pay for.
I’m increasingly of the mind that the ability to analyse a problem or situation thoroughly is the key attribute of the successful lawyer (by ‘successful’ I mean as an adviser, negotiator or representative rather than as a marketeer). One can get the law out of a book and hire an actor to speak the lines, but there’s no substitute for hard thinking and real insight.
Since everyone else is writing about what the BBC somewhat oddly calls England Riots, I’ll step tentatively onto that bandwagon and point you towards Matthew Taylor’s blog on whether it’s appropriate to hand down a 6 month sentence for stealing bottles of water worth £3.50, and (in a different style) Lucy Reed’s piece on the family law context of the riots and some of the remedies that have been proposed in their aftermath.
Contrast those well-argued and insightful pieces with the simplistic causes and solutions offered by politicians and the media. It’s just criminality (as if we don’t need to ask what the causes of criminal behaviour are), or it’s the cuts (because it only takes a few months to turn previously law-abiding citizens into alienated looters), or maybe it’s black culture (where do you start?).
My point is not that lawyers are uniquely rational and thoughtful, or that we’re more intelligent than journalists and politicians (or anyone else, for that matter). I wouldn’t even argue that all lawyers practice what I’m preaching, as the anecdotes at the top of this post demonstrate.
However, I do think that lawyers perhaps learn and practice the analysis of problems more than many professions, and we can and should use that skill to cast light on issues that might seem intractable to others whether in business or when commenting on news events. We let ourselves and our clients and readers down if we don’t do this.
This isn’t a political point, notwithstanding that I happen to agree with the two blogs that I’ve linked to. Lawyers are as entitled as anyone else to their opinion on any given issue, and I can respect anyone who has reasoned their way to support of (for example) the death penalty, even as I vehemently disagree with that position.
But mistaking your opponents argument because you haven’t examined your own position, or (as one prospective lawyer did on Twitter last week during the worst of the riots) making wild statements about how you’d suspend civil liberties if you were in charge? That’s not being a lawyer.