the Zealous

There aren't many songs in which lawyers are portrayed in a positive light.

At best, lawyers are mentioned in order to depict someone in dire straits and desperate for legal help. Warren Zevon's Lawyers, Guns & Money (1978) is probably the best representative of this:

Now I'm hiding in Honduras
I'm a desperate man
Send lawyers, guns and money
The shit has hit the fan.

This is from an actual present-day huge-firm client engagement letter, of 2017 vintage (emphasis added):

The Firm and its affiliated entities represent clients in a broad range of industries and in a wide variety of legal matters. Absent an effective conflict of interest waiver, conflicts of interest could arise that could deprive you or other clients of the right to select the Firm as their counsel, and preclude us from representing you or other clients in ongoing or future matters.

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This is the prophecy of Udo Gollub, as a result of his trip last year to the Singularity University Summit. (The singularity is the point at which computers design and manufacture the next generation of computers, leaving humans out of the loop. Supposedly this is a good thing. Some say this will happen in 2029; some say earlier; some say never.)


Buried in Udo's list of fascinating near-term predictions is the following observation:

In the US, young lawyers already don't get jobs. Because of IBM Watson, you can get legal advice (so far for more or less basic stuff) within seconds, with 90% accuracy compared with 70% accuracy when done by humans.

His advice?

Last week, the ABA presented a panel discussion, When Good Lawyers Make Bad Decisions, moderated by Serina Vash, now executive director at NYU Law and a former prosecutor in the US Attorney's Office in New Jersey.

The panelists consisted of an acting FBI agent and three formerly-licensed lawyers, all of whom pled guilty to felonies. Each of these ex-lawyers had not only impeccable pedigrees (Princeton, Columbia, Univ. VA/London School of Economics), but were highly successful in their respective law practices, at least, up until the time the troubles for each of them began.

And their troubles began, tragically, as the consequence of enormous pressures in their personal lives; in one case, a lawyer was dealing with an alcoholic wife who eventually died as a result of her addiction.

In a study published in the Journal of Corporation Law, law school Professors Badawi and Webber examined, over a five-year period, takeover target share price changes in reaction to the perceived quality of the law firm(s) filing litigation challenging, on behalf of institutional shareholders, the fairness of the announced proposed merger or acquisition. The professors grouped the plaintiff firms into "high quality" and "low quality", based on a number of critieria, including value of settlements recovered and whether any of the firms were openly criticized by the Delaware Chancery judges as being, well, worthless leeches, basically.
 

Contract drafting guru Ken Adams has a non-disclosure agreement template that is (in Ken's words) "way better than anything else out there. And I wager it’s way better than anything a company could create on their own or have a law firm create."
 
Ken explains the steps needed to purchase this – a process Ken describes as "custom-commodity drafting":

If you haven't checked out the TV series Goliath (Amazon Prime), you're missing out. Billy Bob Thornton plays Billy McBride, a badass but disgraced trial lawyer excommunicated from the massive firm that he founded. The show is about how Billy plots his attempt at redemption and revenge.

There's a scene in which Billy is prepping a deponent, his own witness, and conveys his five rules for depositions (full transcript):

But look, a deposition's not rocket science. There's a way to deal with them. You know? There's really five simple rules.

When they ask you a question, if you don't understand it, just ask them to repeat it. All right.

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A surprising number of agreements negotiated by the most sophisticated counsel in the transactional bar contain ambiguous terms simply because the use of such terms is considered market. ....
 
This is not necessarily because deal lawyers do not understand that they are doing this: many times deal dynamics simply do not permit the correction of these ambiguities. But there are other less appealing theories explaining the "herd" mentality of many within the transactional bar, as well as the resulting tendency of many transactional lawyers to become document processors rather than contract draftpersons.

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University researchers conducted a study of 543 participants (communication majors studying privacy, big data and surveillance issues) to measure the frequency and depth of online terms review and comprehension. The research was motivated by a desire to point out the fallacy of a privacy regulatory regime that relies exclusively on the notice-and-consent model.
 
The study authors used modified versions of LinkedIn's terms and policies. They asked the students to sign up to a fictitious social network, similar to LinkedIn, that the university, the students were told, had contracted with. The terms required the user to consent to the disclosure of data to the NSA and to "third parties [building] data products designed to assess eligibility", which, the terms state, "could impact … employment, financial service (bank loans, insurance, etc.), university entrance, international travel, and the criminal justice system."
 
The terms even obligated the user to turn over the user's first born child to the site owner.

Apropos of the recent announcement of Tim Kaine as Hillary's VP, here's an excerpt of a transcript from an April 2016 Senate hearing in which the Senator from Virginia is questioning the Defense Secretary on the legality of operations within Syria: 

"I am correct, am I not, that Syria has not invited us to conduct military operation within the nation of Syria?" Kaine asked Defense Secretary Ash Carter.

"You are correct," Carter responded. "But we do have lawyers."

Drop the mic.

[source]

Sometimes it's a good idea to remind ourselves of that which makes this place special: the Redline Membership Code of Conduct:

Redline is a global association of Legal Professionals dedicated to elevating our profession – legal artisans coming together in a unique and dynamic online collaboration environment. Members must treat each other with the utmost courtesy, respect and consideration. Conduct that violates these norms, in our sole judgment, may result in account termination, including without limitation: (a) ad hominem attacks; (b) submitting Content that calls into question another Member's honesty, judgment, competence or intelligence in a personal and belittling way; (c) revealing another Member's identity when that Member has chosen anonymity; (d) posting private correspondence openly in public; (e) impersonating any person or entity or misrepresenting any affiliation or relationship; (f) forging headers or manipulating identifiers or otherwise disguising or attempting to disguise origin; (g) sending unsolicited marketing, spam, or similar materials; (h) stalking or otherwise harassing or abusing a Member; (i) using a Member's Content against that Member in any litigation or negotiation in order to show inconsistency or contradiction, in violation of section 8.2; and (j) conduct that would violate applicable standards of professional responsibility or these Terms. In addition, reference is made to the Core Rules of Netiquette, with which you agree to comply to the best of your ability:

1) remember the human;
2) adhere to the same standards of behavior online that you follow in real life;
3) know where you are in cyberspace;
4) respect other people's time and bandwidth;
5) make yourself look good online;
6) share expert knowledge;
7) help keep flame wars under control;
8) respect other people's privacy;
9) don't abuse your power; and
10) be forgiving of other people's mistakes.

A federal district court in Massachusetts has reminded all of us legal drafters that even the most trivial article in the English language can make or break your client's case.

Software coder Eric Suh writes, in a piece entitled, Writing code and prose:

One of the most important qualities for effective programming in large codebases is good writing ability—not writing code, but writing prose for other humans.
 
Undoubtedly, this is not a surprise to long-time industry veterans (after all, we don't often program in machine code anymore), but it's a quality I often find is overlooked by engineers that arrive straight out of college. Those that I see write the cleanest, most maintainable code are those who write prose well, whether in documentation, in emails, or in their everyday lives.
 
Many aphorisms about writing style translate fairly well to coding. Consider the following selection of principles from The Elements of Style by Strunk and White:

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In 2011 a study published in the Proceedings of the National Academy of Sciences in an article entitled Extraneous Factors in Judicial Decisions by Shai Danziger, Jonathan Levav, and Lioria Avvan-Pesso, (the "DLA" study) alarmed many of us by calling into question the supposed wisdom and impartiality of judicial decisionmakers.

Are judicial rulings based solely on laws and facts? Legal formalism holds that judges apply legal reasons to the facts of a case in a rational, mechanical, and deliberative manner. In contrast, legal realists argue that the rational application of legal reasons does not sufficiently explain the decisions of judges and that psychological, political, and social factors influence judicial rulings. We test the common caricature of realism that justice is “what the judge ate for breakfast” in sequential parole decisions made by experienced judges. We record the judges’ two daily food breaks, which result in segmenting the deliberations of the day into three distinct “decision sessions.” We find that the percentage of favorable rulings drops gradually from ≈65% to nearly zero within each decision session and returns abruptly to ≈65% after a break. Our findings suggest that judicial rulings can be swayed by extraneous variables that should have no bearing on legal decisions.

I started my own law practice in October of 2006. I left my GC job hoping my contacts at that time would be sufficient to ensure a steady flow of work.
 
Before taking this leap, I was in-house counsel for nearly 9 years at two different companies. Before that, I was a law firm associate for two-and-a-half years (following a two-year federal judicial clerkship). So, at the time I launched my solo practice, my understanding of what a private firm practice should be was quite dated – particularly with respect to legal research.