the Zealous

The basic assumption of our daily work as lawyers is that generally, people will follow the terms of an agreement, and that compliance is the default mode of operation. A widespread normative aversion to intentionally breaking contracts is a fundamental societal assumption. This assumption informs our work as lawyers in negotiating and drafting agreements.

According to one prominent European lawyer, us American lawyers are "argumentative to the extreme."

Let's try to work on that for 2020.

Happy new year everyone!

 

On November 15, 2019, the US Supreme Court granted certiorari in (ie, agreed to hear the final appeal of) Oracle v. Google, with dramatic global  implications for interoperability, innovation, and competition. The culmination of nine years of furiously fought litigation between two technology titans, this case concerns nothing less than the scope of copyright protection for software and the freedom to interoperate.

In 2007, Google developed the Android smartphone operating system to be compatible with the Java platform by copying the Java application programming interfaces (APIs) originally developed by Sun Microsystems, the company that invented Java. By leveraging the existing massive Java developer base, Google’s actions made it easy for Java developers to write applications for Android. 

A small-city lawyer is battling pharma giants across the country:

HUNTINGTON, W.Va. — Paul Farrell, Jr. was looking through the West Virginia Code a few years ago when he came across a statute saying a county has the legal right to abate a “public nuisance.” Typically, that would mean things like trash heaps in someone’s front yard.

But Farrell decided it might also describe prescription opioids.

Farrell is a small-city lawyer in a place often described as the epicenter of the opioid crisis. His hometown has been flooded by pills — “a tsunami,” he says. A thousand people have died of drug overdoses here in less than two decades.

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From David Lat, Law2020, The Ethical Implications of Artificial Intelligence:

Just as lawyers can over-delegate work to subordinates, they can also under-delegate, causing them to serve their clients less efficiently. In the context of artificial intelligence, one can imagine underutilization of AI – for example, a lawyer not using AI even though it could help that lawyer serve the client better.

In fact, given some of the psychological attributes commonly associated with lawyers – a focus on detail, a desire for control, an aversion to risk – the greater danger might very well be underutilization of, rather than overreliance upon, artificial intelligence.

A friendly reminder: in the majority of US states, a lawyer's duty of competence includes an obligation to be up on the latest tech.
 

From a recent ethics opinion of the Colorado Bar Association Ethics Committee, A Lawyer's Response to a Client's Online Public Commentary Concerning the Lawyer (March 2019) (citations omitted):

[G]iven the absence of binding authority, a Colorado lawyer must be cautious when deciding whether and in what fashion to respond to online criticism. For the lawyer wanting to err on the side of caution, the Pennsylvania Bar Association suggests the following language as a potential response:
 

"A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point-by-point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events."

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Excerpts from The Unique Psychological World of Lawyers:

Martin Seligman, a professor at the University of Pennsylvania and the founder of the School of Positive Psychology, which focuses on the attributes that produce success and happiness, has identified optimism as critical for both. In his book, Authentic Happiness (Free Press, 2002), Dr. Seligman reviewed his research on whether any personality attributes were consistently correlated to success in any of 104 careers he studied. Interestingly enough, the only career he found consistent correlations for was lawyering. And the attribute? Pessimism. Pessimism was so highly correlated with success in lawyers that the higher the pessimism in law students, the higher their grades.

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This professor in Geneva predicts that artificial intelligence will displace 800 million jobs in the next ten years. In an interview you can find here: Globots and telemigrants: The new language of the future of work, Prof. Richard Baldwin is asked if the rise of the telecommute economy, ie, flexible work hours and/or work from home, is the precursor to massive job displacement. His answer:

(Laughs) Yes, there’s an element of a Greek tragedy to it. By trying to be more flexible with work, you thought you were getting control of your life. You could come home and take care of the kids while handling a few emails. But you actually arranged it so you ended up out of work because a telemigrant took your job for much less.

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Abro Industries, out of Indiana, makes and sells products under the “Made in the USA” label. Abro sells products like duct tape and epoxy glue, and does quite well in emerging economies. Abro’s Tim Demarias scours the world seeking to open new markets. At one point, Tim noticed that sales were down considerably, and suspected counterfeiters. In an NPR broadcast entitled “The Stolen Company”, Tim recounts his adventures in chasing down one particularly ruthless counterfeiter out of China. Here’s the transcript of the broadcast:

[NPR HOST]: Anyways, Tim couldn't figure this out. Why were his sales slipping?
[NPR HOST]: And then he heard from a customer who had seen some counterfeit Abro products in China.
[NPR HOST]: Tim gets on a plane to investigate. His first stop is this trade show that everyone in his business goes to.

Many lawyers, especially litigators, perceive qualities such as empathy, authenticity, and collaborative spirit that are essential for success in relationships and in most other professions to be liabilities in the practice of law. These lawyers may feel compelled to leave those qualities outside the office rather than harnessing the enormous positive energy that those qualities can provide to fuel their work. It’s no wonder that so many lawyers have low psychic energy and feel disconnected from their authentic selves in doing their jobs.

Robert Holland.

A cruise down any major interstate highway in the US will expose the driver to countless lawyer billboard ads. It’s a good bet that lawyers are among the most prolific billboard advertisers in the country.

In fact, the ads have reached the point where those most exposed to them—long-haul truckers—are taking action in opposition: Truckers fight back against ‘big truck wreck’ attorney billboards.

Most ads are cheesy and unremarkable. However, a few stand out:

Just because you did it doesn’t mean you’re guilty

Injured? Don’t pull your hair out. Mybaldlawyer.com

DUI/DWI Defense: 1-800-NOT-DRUNK

Richard Susskind is “an author, speaker, and independent adviser to major professional firms and to national governments. His main area of expertise is the future of professional service and, in particular, the way in which the IT and the Internet are changing the work of lawyers.” In the words of Jordan Furlong: “We talk a lot about ‘visionaries’ these days, but in the legal profession, nobody seriously competes with Richard Susskind for that title ….”.

In 2009, Susskind published The End of Lawyers? Rethinking the Nature of Legal Services, a pioneering work that served as a wake-up call for the legal profession. Lawyers are not “entitled to profit from the law”, Susskind wrote with a poignancy that continues to reverberate to this day. Susskind’s was one of the first voices to challenge lawyers to “identify their distinctive skills and talents, the capabilities that they possess that cannot, crudely, be replaced by advanced systems, or by less costly workers supported by technology or standard processes, or by lay-people armed with online self-help tools.”

I can't keep up with what's been going down
I think my heart must just be slowing down
Among the human beings
In their designer jeans
Am I the only one who hears the screams
And the strangled cries of lawyers in love

God sends his spaceships to America the beautiful
They land at six o'clock and there we are, the dutiful
Eating from TV trays
Tuned into Happy Days
Waiting for World War III while Jesus slaves
To the mating calls of lawyers in love
 
Last night I watched the news from Washington, the capital
The Russians escaped while we weren't watching them, like Russians will
Now we've got all this room
We've even got the moon
And I hear the USSR will be open soon
As vacation land for lawyers in love
 
Jackson Browne, Lawyers in Love (1983)