If He's an Expert, Then So Is My Dog

 Posted on February 05, 2010 in Uncategorized

Yesterday at the ABA Journal Blogs, Debra Cassens Weiss asked, Are Ghostwritten Blogs Unethical.

In the comments, "defunct big law associate" (in other words, my Rhodesian Ridgebacks have spent more time in law offices than he has) BL1Y writes,

The fact that this is even a question shows a fundamental flaw in understanding how law firms operate. Legal opinions are largely derived from treatises and best practice memos published by other firms. Documents are mostly taken from form books. None of this matters. It doesn't matter if your attorney is independently brilliant, or just happens to be resourceful in finding what you need. If we were dealing with writing novels or poetry, then original work would be important, but that's not what law is. It's a practical enterprise and all that matters is the final product.

This may well be (though I doubt it is) true at the large law firms at which 20%... 19.9%... 19.8%... this post is taking a few minutes to write, so let's call it fewer than 20% of America's lawyers practice.

It is not true everywhere else. Practicing law badly can be done from the form books, and original work may not seem important to a BigLaw first year. But all of the law has not been practiced, all of the briefs have not been written, and all of the arguments have not been made. Lawyering on the level that every lawyer should at least aspire to is a creative process. The practice of law, is, where it counts, a creative enterprise.

This is obviously true of courtroom lawyering (whether trial lawyering, which is what I do, or litigation, which is what people who don't try cases say they do). Courtroom lawyering is all about communication-with the client, with opposing counsel, with the judge, with the jury, with witnesses. In the courtroom, brilliance makes a difference.

Transactional lawyering is also (though perhaps not equally) a creative venture. Future litigators will be trying creatively to undo the contract; today's transactional lawyers have to creatively anticipate what mistakes the parties might make under the contract, and what the litigators will try to do to undo their work.

Lawyers who have to get hired by human beings will tell you (okay, I'll tell you) that personality is crucial. There is no "best" lawyer for every case; the relationship between the lawyer and the client is everything. Clients don't hire lawyers they don't like and trust.

Whatever part of practicing law doesn't involve creativity can be sent overseas to someone who will do it in Noida at a twentieth the cost-if your job can be offshored, it will be (which is probably why BL1Y is living back with his parents).