Ernie The Attorney

Our problem is we don't listen (and many of us don't really want to)

If you want to disturb someone, and provoke a highly irrational reaction, challenge one of their deeply held assumptions.  Galileo discovered this, shortly after he started adovocating the Copernican notion that the Sun was the center of the Solar System, not the Earth.

I thought about this as I read this article in the New York Times today, which is about a scientist who studied trauma and then wrote a book about it called 'The Trauma Myth.'  Susan Clancy set about to study victims of traumatic child abuse and expected to find one thing, but then discovered something else that surprised her.  She set about trying to explain what she found, but instead of having people listen to her findings and think about them, she found that many (if not most) people were violently opposed to her findings.  Many people wound up accusing her being a friend of pedophiles.

Of course, if people had listened to what she was saying they would have been in a better position to actually help people who suffered traumatic abuse.  But what people say they're doing, and what they actually do are two very different things.  People say they're listening, but they're really just monitoring for code words, and then when they hear them their assumptions kick in and they react.  

If we knew how to listen to other people, then many silly disagreements would go away. Because if we listened better we'd realize that in many cases we don't disagree.  But, as long as we live in a world where people with limited information demonize scientists who gather extensive information under rigorous conditions, we will continue to have these pointless discussions.  

I have a new term for these reactionary responses: "viewpoint spam."  It's similar to, but more insidious than, marketing spam.  'Viewpoint spam' is propagated by those who blare ill-considered criticism, even if those to whom the criticism is directed have been thoughtful and rigorous in forming their views.

This attempted law is an example of the insanity I'm talking about.

Oh, and I won't be surprised if someone tries to leave a comment here harshly criticizing Ms. Clancy without even bothering to click on the NY times article link, much less read it.

iPad for Lawyers?

 The Apple iPad was announced today, which pretty much everyone expected.  The device is basically a large iPod Touch, except with some variances.  The iPad has a faster processor, and from what people who played with it report, it appears to be very speedy.  Also, it will have the ability to use 3G, so it can access the Internet from anywhere.  We won't be able to buy one for between 60 and 90 days (depending on if you want the 3G model or not).  Until it is released into the wild, it's hard to say what the real potential of this device is.  My question is: how might this device be of help to lawyers.

First, it will run all of the 140,000 applications that are currently available for the iPhone or iPod Touch. So that means that all of the legal applications that folks have been putting on those devices will now be usable on the iPad. But the screen is bigger, and that's a huge advantage for most of the legal apps because it will be easier to read the text of laws. The iPhone size is okay, but bigger would obviously better.

However, the iPad is not a laptop computer, so it doesn't boot up in the way that a laptop would.  If I grasp how it would work, the device will be instant on in the same way that an iPhone or iPod Touch comes on.  The battery life is supposedly about 10 hours, which we can presume is optimistic.  But even if it's about 7 hours it means that it's usable as a 'digital reference tool'.  And so a lawyer in court or at a hearing could certainly use it to quickly access information.  The simple form is more natural than a laptop, and therefore less obtrusive if used during a meeting or for quickly reading text.  Lawyers who simply want a device to access digital documents would, theoretically, have a strong interest in this device.

Still, we don't know enough yet to really say how lawyers could use this device beyond how they use their iPhones.  True, the iPad will be able to display PDFs (just as the iPhone does), but will it be able to manipulate PDFs?  Would you be able to create a signature on a document using this device?  There are ways to do this on the iPhone, but they're kind of clunky.  I'm pretty sure that lawyers would want to have more PDF functionality on a device like this than currently exists on the iPhone and iPod Touch.

True, there is a new developer SDK kit being released today and perhaps development for this device will create the possibility of applications that don't currently exist on the iPhone.  I would like to have the ability to annotate PDFs the way that I can on my computer.  I would also like to be able to use a bluetooth keyboard and mouse.  The device has bluetooth capabilities, but the optional keyboard that Steve Jobs talked about was one that attaches physically to the iPad.  Does that mean the Apple bluetooth keyboard and (recently released) Magic Mouse won't work with the iPad?  We don't know, but I get the sense that they won't be compatible with the iPad. And that's a shame.

The iPad has a microphone, but I'm sure that it's not optimal for voice dictation.  Can you use third party microphones to get better quality audio in?  We don't know, and probably won't until after the device is on sale. 

I'm excited that this kind of product is being created by Apple, and I think the price point is decent.  I'm just not sure if it will fulfill all my hopes of what a medium sized tablet device could be.  Of course, this is the first iteration and we can certainly expect it to become more powerful over time.  I'm glad that Apple finally took an important step in filling this void.  One reason for the success of the iPhone is the many applications that are available.  But not everyone wants to use an iPhone or be tied to AT&T. Presumably many of those people would find the iPad appealing as a way to get access to the many applications, and also have the ability to surf the web via WiFi or 3G.

I'll almost certainly wind up buying one, mostly out of a strong desire to experiment with what I'm sure will wind up being a popular and useful digital tool.  There are several price options based on different storage capacity (16, 32, or 64 GBs) and based on whether 3G capability is included.  I will probably get the maximum storage capacity.  I don't know if I want the 3G capability.  I probably don't, but we'll see.

I'm not ready to proclaim this device a 'game changer.'  It seems pretty niche, but for lawyers I can see it as a very versatile tool.  If it has the PDF capabilities that I mentioned, that is.

Enlighten me, but make it quick!

Most speeches are too long, which is a shame because almost every speech has some useful information. So what if you created a program that lets people present a bunch of short talks?  

How short?  

5 minutes. Period.  No more, no less.  If you want to use Powerpoint, that's cool.  But, with this ironclad rule: 20 slides that auto-advance every 15 seconds. Period.  No more, no less.

This type of program is called 'Ignite,' and it was started in Seattle in 2006 by two geeks who wanted to create a highly charged speaking experience.  It worked big time.  And as a result 'Ignite' communities have started cropping up all over the world.  New Orleans now has an Ignite program (called IgniteNOLA), and the first event is scheduled for two weeks from now: Monday, February 1st from 8 to 10 pm (cocktail reception starts at 7pm, if you want to get there early).  

The speakers have all been selected, and so everything is set.  If you want to attend, it's free.  But you'll probably want to RSVP to assure yourself a spot at what is sure to be an lively and fascinating evening. The fun will take place at the Roosevelt Hotel (formerly known as 'The Fairmont') in downtown New Orleans.  So RSVP, and then be sure to tell your friends.  Trust me, this is not going to be like any other speaking event you've been to before.

Speaking on social networking to young lawyers

I'll be speaking about Social Networking to the Young Lawyers Section of the Louisiana Bar Ass'n on Friday, January 22nd.  I'll be on a panel with Tom O'Connor and Brett Bonin.  The event is at the Marriott in New Orleans, and is free to all Young Lawyer Section members.  It's a half-day event and there are other speakers after do our talk on social networking.

My take on social networking is that it's just a way of enhancing social interactions and traditional marketing, just that it involves the Internet (and some new skills about how to use these tools). If you tend to put your foot in your mouth a lot, and lack common sense then you should avoid these new tools because they'll only get you into bigger trouble.  But, if you are circumspect and good at engaging people in a positive way then these tools can really help. 

If you want a copy of my paper on 'The good and bad of social networking' click here (PDF download)

The New Orleans Mayor's race

Folks in New Orleans don't have much time to figure out who to vote for in the upcoming mayor's race. I know who I'm going to vote for, because it's the same person I supported last time.  Last time he lost in close runoff with Nagin.  One reason was that many white conservatives refused to vote for the son of a guy who, in their view, enfranchised blacks and disrupted their orderly society. I wouldn't have believed that, except I personally know several of those folks and they admitted that they voted against Mitch because of his father's political record.

I hope Mitch will win this time, but I've learned not to discount the power of ignorance. There's a lot of it in New Orleans, and not all of it belongs to uneducated voters. Look, let's face reality. Politicians (and businessmen who run for political office claiming to be 'better than politicians') often rely on ignorance to get elected.

Take John Georges for example. He claims to be a savvy businessman who will shake up 'our inefficient government,' and he counts on ignorant people to accept this statement at face value.  He's expecting people to think 'well, he's a successful businessman, so he'd be perfect to bring about reform in government.'  First of all, no one can appreciate the appeal of that pitch more than me.  

I hate politics, and have for pretty much my whole life. I don't hate politicians, or at least not all of them. I hate the system that makes it possible for people in power to exploit the ignorance of those who elect them.  That's what I hate.  And the idea that an outsider could ride in on a white steed and make massive changes is a storyline that I've wanted to believe in most of my life.

But about 20 years ago I went to law school.  Since then I've been practicing law, which has given me a ringside view of how political power is deployed in practice. No one person can change a political system. Maybe a charismatic leader can galvanize a populace already inclined to make some changes and then put enough pressure on other politicians to bring massive reform.  But those kinds of charismatic leaders come along rarely. And when they do they tend to get killed quickly. Alas, the system is hard-wired to resist change.

So, as much as I hate to admit it, if you want real political change you need to look for a politician who actually wants to bring it about, and is capable of doing it naturally.  Sure, it's possible that John Georges could make some changes in city government.  Possible, but not likely. First of all, he's not charismatic.  Second, he's not really true to his claim of being 'above the usual politics.'

One day he boldly proclaims that Jim Letten, the local U.S. Attorney, should be dismissed and replaced by a Democrat. He offers this statement to show he's not racially motivated (e.g. he said "I'd rather have a new U.S. Attorney.  It's not a racial thing; it's a Democrat thing.").  

Huh?! What does that mean?

Well, let's break it all down and see if we can figure out what he's trying to accomplish by making this patently inane statement. He's not a fool, right?  He is trying to say something to attract voters.  So which voters is he trying to attract, and what's his angle?

Think about it for two minutes and it's obvious: if you're a rich white guy running for mayor of a city that's predominately inhabited by African-Americans you need to appeal to the so called 'black vote.' Georges' statement of allegiance to the Democratic party, coupled with the weird add-on statement 'it's not a racial thing,' only makes sense if it's designed to appeal to black voters.

He is counting on voter ignorance when he makes the statement. He assumes they won't think "gee, if he's a businessman who claims to be above 'politics as usual' then why would he want to get rid of a U.S. Attorney just because he's a Republican?"  He expects them to think "yeah, that's right Jim Letten is a Republican, and he's only interested in convicting (black) Democratic politicians."  

But apparently he didn't consider how this statement would play among white voters, especially those who think that Letten has done a great job.  So, now he's retracting that statement somewhat.  Today he says "I believe Jim Letten is doing an outstanding job," and anyway, "the mayor has no control over the appointment of a U.S. Attorney."

Uh, okay.  So if Letten's doing an outstanding job, and if the mayor has no say in who is U.S. Attorney why make the first statement to begin with?

Because Georges is not interested in being consistent.  He's just lobbing various statements around hoping that they'll resonate with different constituencies who won't notice the inconsistency.  In other words, he's counting on voter ignorance.

And, as much as I fear voter ignorance, in Georges' case I am not worried at all.

There's a limit to every ploy, whether it's a business ploy or a political ploy. The bottom line is this: Georges is out of his league, and will not be elected mayor of this city. If I thought he had a chance I'd be worried.  He's a complete sham: he is the worst kind of politician and we've already had our failed experiment with the businessman who looks 'too good to be true," and turns out to be 'worse than we imagined."

Maybe Georges can line up enough white conservatives who 'would never vote for Landrieu,' but first he'll have to make the runoff.  And that ain't happening. If Georges somehow did manage to make the runoff, then Mitch Landrieu would be the next mayor. And that would be very good, because Mitch is not the typical politician.  He doesn't assume people are stupid and then calculate how to take advantage of their ignorance. He assumes that people want to do the right thing.  His chief of staff is a Republican, not because of a political agenda but because she was the best person for the job.

If you want real political change look for the right political leader, and stay away from hacks who want to exploit ignorance. Maybe this time New Orleans will get the miracle that it deserves. If it doesn't then we will have no one to blame but ourselves.

Where I get my information

Keeping up with the increasing fountain of information is a challenge for anyone.  It's especially challenging for me because I'm always adding new sources to my existing flow.  If it weren't for Google Reader (a web-based RSS reader) and NetNewsWire (its companion program that syncs to Google Reader), I'd be lost.  But the truth is, I really gravitate towards a few basic sources.  And so, as my New Years resolution to share more information, I thought I'd pass along my really key sources. 

First, let me say that RSS is an amazing technology and I wish more people would make use of it.  In fact, if you want to use an RSS reader and simply want to subscribe to everything I read (you can delete what you don't want) then download this OPML file and import it into your RSS reader.

Everyone laments the downfall (or, at least, serious downgrade) of newspapers.  I don't waste time lamenting things that are inevitable.  Newspapers (or any daily paper-based publication) face the harsh reality that printing every day, coupled with every day physical delivery, is an frighteningly expensive way to deliver information. And, if the reason you're printing every day is to cover 'breaking news,' then you're basically trying to defy gravity. Twitter is fast, free and scaling virally.  So good luck to the newspapers.  I predict that in ten years there will only be 5 national papers, and a smattering of local ones.

What will we do then?  Sad as it may seem to you, you'll be on our own. You'll have to sift through the mass of information and latch on to the good stuff. Wouldn't it be cool if you could subscribe to the best online feed for each topic that you were interested in? Well, you can. RIght now. The future, my friends,"is here but just not evenly distributed." So, tap into the future now, and let the newspapers arrange their funerals on their own.

So, if I were building my own personal newspaper from online sources here are the feeds I'd subscribe to.

Security: Bruce Schneier

After 9/11 our lives became filled with paranoia and misinformation. People who want to gain more power are happy to exploit this mindset. If we don't educate ourselves about what kind of security is practical and important (as opposed to stupid and reactionary) we'll wind up with a world where the government has more control than they really need. The mainstream media is hopelessly unable to understand or explain these issues.  

Bruce Schneier, however, is able to explain security.  He is a serious technowizard, who has written a couple of books on the subject. I read Secrets & Lies back when it first came out and was surprised at how balanced he was, and how thorough and reasonable his explanations of security issues were.  Let's face it, security can be complex if you want it to be (which is what most 'experts' and demagogues want). His blog is one of my go-to, everyday reads.  He's on top of almost every widely discussed security issue of the day. If you want common sense security analysis (and you should) then he's the guy.

Marketing: Seth Godin

Why would you care about marketing?  If you read Seth Godin you probably would. Why? Because he knows a lot about how it operates in everyday life. You've been bombarded with advertising and marketing campaigns since before you learned to speak. Understanding these forces might be useful, if you want to understand how people make friends and how businesses make money. Dale Carnegie's famous book has been read by many people who weren't in sales, you know.  

Seth Godin's ideas are powerful, mostly because he takes into account this wacky new thing called the Internet.  Most conventional marketing people either don't understand the scope of the Internet, or can't explain it. The best way to get Seth is by daily email. He writes one thought-provoking post per day, sometimes two. His books are freakishly awesome too.

Presentation: Garr Reynolds

It's not enough to just 'know things.' There are plenty of lawyers who 'know the law' and simply can't explain it. This makes them ineffective advocates, to say the least.  Once you've gathered information it helps if you know how to present it. Today, that usually involves visual information in the form of PowerPoint slides. Unfortunately, most PowerPoints are abominable.

Garr Reynolds has written two excellent books (the second one just came out, and I'm in the process of digesting it). But above all, his weblog is the best source of information on how to create inspiring, and visually appealing presentations. His web page on presentation tips should be required reading for every business student, law student, or basically anyone who conveys information for a living (check out 'delivery tips'). Ditto for his 'sample slides.' I'm not saying I incorporate all of this into my presentations. Just that I aspire to. Garr Reynolds is my North Star for all things related to design and presentation. 

In addition to his observations on presentations and design, he also will recommend books from time to time. I have found that I pretty much buy (and thoroughly enjoy) every single book he recommends.  He was the one who turned me on to Brain Rules. 'Nuff said.

Photography: Scott Kelby

Everyone has a camera it seems, and everyone would like to make beautiful images of the things they cherish. Digital photography has made it easier to create those images, but you still have to know what to do. If you want to to make portraits more intimate, and landscapes more breath-taking then you should buy Scott Kelby's books (especially The Digital Photography Books 1 through 3).

Scott also has a blog, and it's a steady stream of insights and tips and reminders of how easy it is to get great pictures if you focus on some key principles. The more you learn the more you want to know, and Kelby can walk you through the whole process. He also has a keen sense of design (he was a designer before becoming a photographer), so he's a great compliment to Garr Reynolds. And if you follow Scott you'll probably wind up following Joe McNally and that would be a good thing.

Curiosity: Scott Adams

More than just creating Dilbert, Scott Adams is smart and extremely curious about the world. He is willing to share his thoughts as they are being formed (which is remarkable in itself). And often he's not so much making a point, as asking a question without preconceptions about what the answer might be. His open-mindedness invariably draws fire from commenters who feel that he's taking a position against some entrenched view. Apparently, many of us have lost the ability to detect a question because we think only in declarative sentences.  We need more people like Scott Adams, who teach us that it's more about being curious than about having our hands on the buzzer.

Social Trivia: Jason Kottke

A web-designer in New York, Jason Kottke has been paying attention to the information economy for quite awhile. He comes at it from the web, but most of his tidbits are about analog stuff.  I get the sense he wants to remind us there's a lot of interesting stuff outside of an LED screen. His observations are a soothing river of eclectic serendipity. You should read him everyday. Trust me, or I should say 'trust Al' since he's the one who turned me on to Jason Kottke. Which brings me to...

Filter Friend: Al Robert

Everyone should have a friend who's good at finding out lots of interesting stuff.  Since they're your friend, they know what you'd be interested in. My 'filter friend' is Al Robert. I met him because he started this website while in law school. He doesn't keep it up anymore, but I still use it as a way to find Louisiana statutes since his interface is more user-friendly than the official site. I'm sorry he doesn't but he does keep posting things to his delicious account. 

If you read this blog frequently and wonder where I get my information the answer would be Al Robert. If you keep up with his delicious page you'll notice that a lot of my stuff will appear shortly after he posts it. Everyone should have a 'filter friend' like Al. And in Al's case he's more than just a filter friend; he's an awesome guy and really down to earth. If you're really lucky you have a good friend like Al.

Oh, and he just asked me in an email if I read Techmeme.  I don't, but since Al thinks it's good I will no doubt start reading it tomorrow.

What would Henry Ford do?

Henry Ford's greatest invention was the assembly line. The assembly line was more efficient than what preceded it, and it allowed Ford to make cars faster and cheaper than before.

The assembly line wasn't Ford's biggest insight, though.  First, he had to identify the proper sequences of action needed to make a car.  Then, in a large factory floor, he created the assembly line that allowed those sequences to be carried out.

Think of computers as today's factory floor.  And software is the assembly line. Computers were built to execute repetitive sequences of action quickly.  So why aren't you taking advantage of automation when you use your computer?

For example...

Your emails arrive and sit in your inbox. Why don't you have a system that  automatically files incoming emails into the proper folder?

Or someone sends you an invitation to an event.  Why don't you have a system that automatically routes the event into your calendar?  And then the calendar event also gets automatically added to your iPhone calendar?

Or someone calls you on your phone and you add them to your phone's contacts.  Why don't you have a system that automatically, and immediately, synchronizes that information to your computer's contact database?

Computers allow you to set things up this way, and yet many people still do things manually.  The result is chaos and inefficiency.  What would Henry Ford do if he had a computer?

He'd probably learn how to use it to automate routine tasks, and make his life easier.

What telephone system should solo lawyers have?

I got an email the other day from a lawyer who had a couple of questions about my communications tools:

“What phone system are you using?  Do you have a traditional landline and also a cell phone or only a cell phone?  I am a solo practitioner with two incoming lines and AT&T DSL service.  I am searching for a more effective system and hopefully something less expensive than the $325 or so monthly cost.”

Obviously, everyone’s communication needs will vary slightly.  So it’s not like there are absolutes that apply across the board. Nevertheless, there are some broad principles that solo and small firm lawyers should keep in mind.

1. Consider using a VOIP service for your business line

Traditional landlines are priced more expensively than they need to be.  The lawyer who emailed me was paying AT&T for two incoming lines PLUS high-speed internet service.  Let’s say the monthly cost of the Internet service is $40 - $60, which is typical.  VOIP service allows you to get business class phone service delivered over your high-speed internet connection.  And VOIP providers like Vonage or Packet8 (both very reliable and reputable) offer plans for $30/month.  These plans include nationwide long-distance, and all you can use calling.  So, theoretically, you’d pay no more than $30 for all of your business phone service.

I have not used Vonage, but I presume that it’s level of service is equal to, or better than, Packet8, which I have used (but no longer use for reason I’ll explain).  Packet8’s service allowed me to have my cellphone ring simultaneously when the main line would ring.  So, if I was in the office I’d pick up the VOIP ‘landline.’  But if I was out of the office I could answer on my cellphone.  Plus when I travelled internationally I could take my VOIP box and make and receive calls for the same $30 monthly fee.

2. Leverage your cellphone

Everyone has a cellphone, and it’s great for making calls when you’re out of the office. If you have a VOIP service like the ones I discussed above then you can use the cellphone to receive calls that are inbound to your office phone.  The problem is that, sometimes you don’t want your clients or opposing counsel to know that you’re calling from your cellphone, or you don’t want them to know your cellphone number.  What can you do about that?

If you use a call management service then you can add additional functionality and flexibility to how your calls are handled.  I used a service called RingCentral (but no longer use for reasons that I’ll explain), which is superb for call management. The price plans are kid of tricky, and can wind up being expensive.  But, in many cases it will well be worth the cost.

RingCentral gives you a free 800 number and a fax number as part of a basic plan, which is about $30/month.  The service then allows you to direct your main number to any other numbers you want, in pretty much any fashion.  So, you could have your mainline and cellphone ring simultaneously (like I did with my Packet8 account, before I added RingCentral). But you can do much more, such as simultaneously ring more than one phone, or sequentially ring several phones, or ring phones only during certain hours of the day, and only on certain days of the week.  Also, you can place calls from your cellphone and have it route through RingCentral so that the recipient sees your business line on their CallerID.

The drawback to RingCentral, as far as I was concerned, was the price.  The basic plan includes 500 minutes, which seems okay until you figure out exactly how those minutes are incurred.  The way it works is that you’re ‘charged’ a minute for each minute of connect time for any call that they direct.  One of the two reasons for using a landline (as opposed to only using your cellphone) is not having to use up your cellphone minutes.  And if you have a VOIP service that provides you with all-you-can-use nationwide calling for only $30 you don’t want to then start having to meter that usage because you’re using a call management service.

I loved RingCentral.  Their service is great, and so is their support.  But, the billing method was irksome.  

3. Seriously consider a ‘virtual receptionist’ service.

A few months ago a friend of mine recommended a virtual receptionist service called Ruby Receptionists.  You can try it for 30 days, free of charge, so I did and I was completely blown away.  Ruby Receptionist is a ‘high touch’ service that seems expensive at first, but really is incredibly cheap for what you get.  

The basic package is $199/month and provides you with 100 minutes of service.  But, unlike RingCentral, they only count the minutes that the receptionist is working on your calls.  Once the calls are directed and connected their meter stops running.  I have not come close to using up the 100 minutes in any month.

Obviously, a virtual receptionist does everything that RingCentral does, except with powered by real-time human intelligence.  If you’re out of the office and call comes in, they will ring you and tell you who is calling.  If you want to take the call they put it through.  If not, they’ll take a message or send the caller to voicemail.  

I can’t possibly explain in writing how useful their service is.  You simply have to try it to understand.  The only requirement is that you must be able to forward your main line to them so that they can take the initial call.  They are experts in helping you get this set up, so there isn’t much to fear.  One biggest benefit of this service is when new clients call in.  I have found that clients feel much more comfortable engaging me if they’ve spoken to a receptionist than if I answered my phone myself.  It may not make sense, but that’s the way it is.

4. My current set-up

My current phone set up is as follows: (1) Ruby Receptionist for call handling ($199/month); (2) AT&T iPhone as my cellphone; (3) Office VOIP phone is provided by my landlord as part of my monthly rent (and that's why I dropped Packet8); (4) RingCentral for my web-faxing ($9/month).  

5. Conclusion

Obviously, everyone’s business cellphone usage is different, and often hard to break out.  Let’s assume mine is about $130/month.  That means I’m spending about $370/month on phone related expenses,  which is close to what the fellow who emailed me was paying, but with one big difference.  I have a real person handling my incoming calls.  The way I’m able to afford this is by not paying for traditional landline phone service.  Hiring a real receptionist would cost a lot more than $200/month and would leave me vulnerable on days when she was out sick, or if she suddenly quit.  With Ruby Receptionist I’m guaranteed the same level of professional service every day.

What's common sense got to do with it?

In my first year of law school I had to take a course called Common Law Property, which lasted a whole year. It was taught by a brilliant Harvard Law graduate who believed that, to understand our current legal rules, you need to understand how the rules came into being. 

Property law is, of course, focused on how title to property is acquired and then transferred. My professor spent weeks explaining how title to property was transferred in late Middle Ages. Basically, if you wanted to transfer a parcel of farmland to another nobleman you’d both have to mount your steeds and trot over to the plot of turf in question. Then, while you were both standing on the property itself, you’d have to reach down, grab a chunk of turf and then hand it to the transferee while reciting some pompous phrases. 

Today, transferring property is much easier. You still have to deal with pompous phrases (and reams of disclosure forms and bureaucratic paperwork). But, at least you don’t have to waste half a day riding to the property site. 

But, if you read some typical title documents you'll probably catch a whiff of history.  Look closely and you’ll see a lot of strange verbiage, most of which is pretty dense. This verbiage has been carried forward, fundamentally unaltered, from the good old Middle Ages. Sure, a few lawyers have updated their real estate forms to prune out the antiquated, and unnecessary, legal arcana. But most lawyers haven’t, and wouldn’t feel comfortable doing so. 

Lawyers love forms, especially ones that have been in service for centuries. In their minds, this gives forms the 'weight of precedent.' And, strange as it may seem to a layperson, precedent is more valuable than common sense. 

Why is that? 

Well, lawyers believe in efficiency.  They want a smoothly functioning legal system, which of course we don't really have.  But, how much more slowly would our system be if lawyers had to explain, in common sense terms, why they do what they do? No my friends, common sense is not the way to go.  If we want to keep things running smoothly we need for people to accept the idea that what we do is inherently lofty and supremely noble. 

This is why precedent is so much more valuable than common sense.

If you use ‘precedent’ (especially really old precedent) as your justification, then ordinary people can’t really question what you do. If they do, you just snort “well, this is the way it’s been done for many centuries” —thereby deftly bypassing whether developments in the last couple of hundred years might call for new procedures. 

The notion of abandoning well-established patterns makes most lawyers nervous. Some lawyers are so wedded to those patterns they'll have a nervous breakdown if you try to take them away. I predict that, somewhere at this very moment there's a lawyer who's visibly trembling at a real estate closing because no one brought a clump of dirt. God forbid some ‘clever lawyer’ later challenges the validity of the transfer.

So, if you want to do your lawyer a big favor, next time you go to a real estate closing bring along a clump of dirt.

The value of being a law review editor (oh, the irony!)

 During law school I did pretty well. In my last year I was selected to be on the law review editorial board, which I thought was the most important achievement of my law school career. I became a "managing editor," which meant being primarily responsible for obsessing about Bluebook citation form. This position is highly prized, mostly because law review editors can't do much beyond applying style rules and checking basic legal propositions. Neither I, nor my fellow editors, had any idea of what constituted 'proper legal scholarship,' or scholarship in general for that matter. But that didn't stop us from lording over submitting authors as though we were Emperors at the Roman Coliseum.

Upon graduation I went to work for a federal trial judge. He was whip smart and well-respected. He had been the Editor-in-Chief of the same law review when he was in law school.  I assumed, therefore, that he held law review service in high esteem. During the job interview he scanned my resume and then quickly observed that nothing I learned while on the law review would be of any practical use to me as a lawyer.  

I was stunned. But I was relieved to find out that I would nevertheless be offered a two year clerkship.

During my clerkship I came to learn that he'd once submitted an article to his alma mater, as a favor to someone I believe, but the law review board edited it without his permission. And then published it. They changed key words, and altered the carefully crafted meaning. As a result, one of his key points was totally distorted. He complained ferociously to the Dean about the lack of 'adult supervision,' but was told: 'this is the way that all law reviews are run.' It completely baffled him that mere students would be given editorial power over lawyers with vastly more experience.

Pretty much everything about legal academia baffled him.

When he passed away, I wrote a blog post about what it was like to serve in his chambers. The final passage ended with me describing how he used to come down the hallway and bellow my last name, which he used to mispronounce as 'Swenson.' The point was that he had a profound influence on me, even though he never learned how to pronounce my last name. No one who read the article could fail to miss the bittersweetness of this point, as it captured a small --but important-- part of his personality. Someone came up with the idea of doing at tribute issue in the law review. Many people wrote essays about the Judge and his many accomplishments. I was asked permission to have my blog post republished. I agreed, and emailed the editors the text file. My words didn't need any editing, or fact checking. They didn't contain citations, and there were no Bluebook issues. Nevertheless, they couldn't just publish the article as written (that would belie the fact that that being a law review editor served little purpose). So, they naturally set about editing my words. 

And guess what got changed?  

Yep, they changed the final passage. And, just as they had with the judge many years before, they never gave me the chance to correct their mistake. What was their mistake? They changed the passage so that my name was spelled correctly, which completely eliminated bittersweet charm and pretty much ruined the ending. But, I'm sure whoever made the change felt a small moment of pride at having "caught" my mistake, saving me from the embarrassment of having misspelled my own last name.

Oh, the irony!!!

All they had to do was copy and paste what I sent them. But the right thing, the easiest thing, was simply not within their skill set. My judge was right: law review experience is worthless.  

In many cases, it might actually be dangerous.