“I was never ruined but twice: once when I lost a lawsuit, and once when I won one.”
― Voltaire
Where US civil litigation (disputes) are concerned, a good lawyer looks to end the dispute before the cost of litigation approaches the value of the dispute. Once might argue the feature and bug of US tort law is the litigation becomes a third party in the case, against whom both sides must fight, hopefully finding a common enemy in its cost. If the cost is not enough to settle the dispute, you can add the unpredictability of judges and juries who on any given day can invert the obvious, wrecking a 'winnable' case.
A great lawyer, as opposed to a good one, keeps your fees down as you heads to trial against an opponent with seemingly unlimited money and appetite for litigation. They accomplish this by focusing on the core dispute and ignoring ancillary matters, often making their client (wrongly) question how committed they are to their case.
In sum, a good lawyer manages their client (always pushing internally for settlement), works to keep fees down until discovery closes, sows doubt in the other's sides confidence, establishes credibility with the Judge, and shows up meticulously prepared for trial.
As a thought exercise, imagine how hard all this is to do when you dislike your client, your managing partner is on you to increase billings, your kids need braces, and you're hoping to save a few bucks for retirement and an escape from a profession filled with bad lawyers.
A great lawyer can also cause the other side to spend a ton of money responding discovery requests and motions. In fact, a common strategy is to get the other side's legal bill to be so high they eventually give up.
I've seen this kill multiple startups who end up in disputes with large tech companies. Even if the startup is 100% in the right, the large co can tie them up in a lawsuit for years and VCs won't back a startup actively involved in a lawsuit, so the startup runs out of money before the case is ever decided.
This isn't a "great lawyer" play . It's the standard play for any unscrupulous party engaged against a party with limited funds.
Even if a case is pretty open and shut, you can tie it up for years in motions for little benefit. This isn't hard at all.It's hard to be on the other side and respond to it.
A great lawyer can achieve a settlement against a party like this without the need to throw sacks of cash onto a firepit.
This is incorrect in my experience. My company was sued by LinkedIn about a year after receiving a $1MM seed round. We were low on money with about $250K left and raising when the suit hit.
This is a game of leverage.
Lawyers are tools that have to be used effectively to apply leverage. Like any tool, good ones make a big difference.
At the time LI was worth about $30 Billion, we had $250K. We convinced LinkedIn to settle after about 4 months in SF court for a nominal amount.
Good/ethical lawyers were critical along with significant creativity from our side on how to use them.
We survived, raised a round and the company is still kicking.
If Linkedin decided they wanted to put you out of business the lawyer would not be able to arrange a settlement. A lawyer does not even control whether their own client settles.
You think so? Read the case. “LinkedIn v. Robocog”. If you think they let us go out of the kindness of their hearts, I’m interested in hearing more of your thoughts
Also, I didn’t say lawyers control settling. I said they’re tools that can be used to achieve an outcome. And the good ones are very helpful. Force multipliers.
Ours were experts in IP law. They knew it well. We used them along with other leverage points to achieve our settlement.
I didn't say a good lawyer will achieve the settlement. I said they could.
Keeping costs down and only spending enough to acquire the absolute key arguments, research and evidence is how you get to discuss a settlement with leverage.
A large corp can still pepper you with motions then push into trial, but a great lawyer will be limiting how quickly you burn through your war chest and fight battles judiciously instead of throwing the kitchen sink at every motion.
In fact, I did see this with a friend who was in arbitration with a giant tech company. Supposedly, arbitration is a cost-savings over litigation. I'm sure it is, but that's a little like saying chlamydia is better than syphilis.
You can also refuse to settle, just demanding the law be carried out until its last consequence, regardless of the other party offering everything you want. Sometimes if the other party fucks up in a trial and gets a contempt hearing, the plaintiff can demand double the amount demanded in the original lawsuit as a settlement, but I would recommend also demanding they allow the court to make a declaration as to their wrongdoing.
VC's do, Paul Graham talks about this, they often face vexatious lawsuits, they just have to disclose the suit instead of hiding it and let the VC discover it. And many VC's are timid, and don't have the vision the industry lionizes, because it's an elitist characteristic.
Great analysis. Even though we see the warts all of the time, I'm so incredibly impressed by "law," and I didn't get to this point until I was well out of law school.
Why I'm impressed is how well the law holds itself together in the face of the massive weight of influences that have every reason in the world to try to corrupt it. It's just all too easy to speculate (or read historically) how easy it is to corrupt this kind of power (religion, violence, fear etc) and how this general notion of "No, we're going to dress up like grownups and do our damndest to figure this out with reasoning" is so great.
Great point. The difficult thing, on this forum, is it is weighted towards younger and very accomplished computer scientists. Sometimes the impulse, when seeing complexity that's hard to understand (medicine, regulation, law), is to be frustrated and dismiss it. Law is amazing and much older than programming, and one of the underrated human inventions. The fact we aren't constantly killing each other over small disputes is amazing when you really consider it.
> Law is amazing and much older than programming...
And boy does it show. Recent events have me examining The Supreme Court and American law from a programmers perspective. And let me tell you, there are warts:
The Supreme Court is comprised of lifelong appointees, mostly in the dwindling twilight of their cognitive ability. This made sense when we didn't understand cognitive decline. Now with the rapid pace of technological progress, it's a joke. To be plain, I don't know of any ICs their age able to keep up. They move up or age out.
The whole legal rationalist ideal that you can start from the base principles of the constitution and reason up indefinitely is ridiculous. We programmers have all sorts of tooling to navigate code bases larger than we can readily keep in our heads. That tooling regularly fails us. The best programmers I've worked with regularly hit compiler errors. This all happens in the sterile environment of code. Why should I believe that judges, who can't even agree on whether to interpret the constitution in a modern lens or hold to its writers original intentions, are less susceptible to irrationality or bias or plain incompetence with far less tooling? A lot of modern psychology suggests they can't.
For all you programmers out there, read a handful of legal documents. As far as complex logical reasoning goes, it comes off like a kid building a treehouse compared to code for even simple web apps. The legal profession needs to recognize its limitations and catch up with the times. Here are some ideas:
- Rigorous, regular cognitive testing after for all licensed legal professionals older than 45. You have to pass a test to drive in old age, but you can sentence someone to life in prison no problem.
- Term limits for everyone, everywhere.
- In certain cases, law should embrace statistics. Certain cases aren't suited for proposition-like rule based reasoning. Law needs a larger tool chest that can make argument based not on precedent, but on what exists right now in American society.
You misunderstand. Law is about persuasion - which is to say it's a combination of marketing, power plays, intimidation, theatrical performance, bureaucratic procedure, and politics.
The logical (verbal) reasoning element is only relevant in those situations where it can be used as a tool of persuasion. It's not the only tool, and it isn't even the most powerful one.
It is absolutely nothing like coding in any sense at all.
For example - term limits seem like an obvious solution. But how would they be administered? For whose benefit? Who chooses replacements? How often, and in what circumstances? How would recalls and impeachments work?
Legislation would have to cover all of those details and more. And the people writing the legislation would be lawyers.
Because you can't just wave a hand and say "term limits, yeh?" and expect that to solve anything.
100%. Relatedly, this is why I'm ultra-skeptical of just about everything AI is hyped up to be these days. Computers are nowhere near us in terms of being able to synthesize all this stuff and actually doing helpful things for humans in this space.
Yep, we have an adversarial, common law system. So we measure our lawyers on their ability to manipulate regardless of the moral or social outcome. I don't think this is a facet of law in general, so much as a legal system that hasn't grown past ~1790.
I understand what you are saying about declining cognitive abilities, and don’t necessarily disagree. However the lifetime appointment of US Supreme Court justices is a purposeful designed feature, not a bug. It is to foster an independent justice branch that is not beholden to the president that appointed them, because the justice can simply “outlast” the presidents term
> However the lifetime appointment of US Supreme Court justices is a purposeful designed feature...
It was a feature in a time when white men lived, on average, to the ripe old age of 38.
I'm tired of treating anything the founding fathers came up with as sacred. Different time, completely different context. Economics, psychology, and almost all of STEM didn't even exist then. They did not know what they were doing. They got lucky in almost every regard.
Keep in mind in all of human history only about 1/4 of violent revolutions are successful, many that "succeeded" left all parties involved much worse off. America, especially in its inception, was an incredible anomaly that far too many paint as something more in the name of American exceptionalism.
EDIT: Look, our legislature is a complete and abject failure. It's completely gridlocked, arguably by the design of private interests. If it were working to reflect popular interest, I imagine American law and government would look very different. I don't think any of what I'm suggesting here would be even slightly controversial to be quite honest.
> a time when white men lived, on average, to the ripe old age of 38
That is a meaningless figure. Those that survived to adulthood had similar lifespans to us.
> I'm tired of treating anything the founding fathers came up with as sacred.
This is a common refrain from people who want to change things as they see fit against the wishes of those who disagree with them. If there were broad consensus to change the law as written then presumably the legislature would vote to do so. You are attacking the credibility of the institution rather than admit that something like half of the country doesn't share your views.
> If there were broad consensus to change the law as written then presumably the legislature would vote to do so.
The legislature does not represent popular interests any more and hasn't for years [1]. This is widely studied and accepted. You can see it plainly even in its demographic and socioeconomic composition.
We don't have enough of a shared reality here to come to agreement and should agree to disagree.
That's a cute study you've linked: "opinions of average citizens don't matter, it's the money and power that make the law." This must be the greatest revelation since Ancient Greece.
Very little of what the founding fathers wrote is considered sacred, I’ve never really heard people make the case that it should be. What is considered sacred by some Americans is the constitution, but I think you’ll find yourself in a small minority if you think it should be thrown away. It doesn’t really matter if you’re tired of hearing about it, it’s a very common American perception that the rules set out in the constitution should still remain the cornerstone of legal precedent in their country. It’s nice to say that those old white men were hacks who got lucky and we should give it a rest with the constitution thing, but most people here don’t really feel that way.
A majority of Americans think we should interpret the constitution in a modern light [1]. The young, secular, internet-age population are going to challenge the constitution further as the generation of Reagan and American exceptionalism go to the nursing home. I'm sure of it. It's a shame we have to suffer the death rattle of traditionalists in the meantime.
> Different time, completely different context. Economics, psychology, and almost all of STEM didn't even exist then. They did not know what they were doing. They got lucky in almost every regard.
I disagree. Technology and knowledge changes. Base human nature doesn't.
It's not about "treating anything the founding fathers came up with as sacred". Nor about the average age and baseline knowledge then and now.
It's that humans are subject to influence. And members of the judiciary - decision makers of the most obvious kind - are especially likely to be influenced if their security can be affected by the passage of time.
Sure, the lifetime appointment does not 'guarantee' anything in terms of judicial independence or judicial freedom. But it does enable a judicial member to make decisions, if he/she wants to, in a manner free from the consideration that their politically-'incorrect' choices may cause them to retire, or be retired, early. And that is a security feature that judges must be afforded, however old they may be, in order to let them freely make decisions that they think are the best possible, whether they subscribe to originalist views or are judicial activists.
> that is not beholden to the president that appointed them, because the justice can simply “outlast” the presidents term
And to ensure they aren’t beholden to the guy promising them their next job. Compromise could be you become a nonvoting member of the Court after a certain age. You can ask questions at trial, deliberate with other members, et cetera. But you don’t sign opinions or dissents.
> The Supreme Court is comprised of lifelong appointees, mostly in the dwindling twilight of their cognitive ability. This made sense when we didn't understand cognitive decline. Now with the rapid pace of technological progress, it's a joke.
The Supreme Court is not that old. Only two are in their (early) 70s, and three are in their 50s. John Roberts, the median aged judge, and is about the same age as Bill Gates.
Fluid intelligence peaks at age 20, but judges aren't being tested on their ability to solve timed logic puzzles.
> The whole legal rationalist ideal that you can start from the base principles of the constitution and reason up indefinitely is ridiculous.
I agree it's ridiculous. The Constitution is a rulebook, not a set of principles to use as a starting point. "What would these words have meant to the people who wrote them?" That's how we interpret any other document. It's not hard.
> - Rigorous, regular cognitive testing after for all licensed legal professionals older than 45. You have to pass a test to drive in old age, but you can sentence someone to life in prison no problem.
Possibly I’m focusing too much on this point as a lawyer in his early 40s, but would it be fair to assume this cognitive testing regime should be applied to all intellectually demanding professions? Like medicine and finance and, say, software engineering?
Not sure whether to be alarmed by your proposal and the offhanded way in which you threaten my livelihood, or take solace in the fact that maybe I’ll be exempt from it since I’m a corporate lawyer and can’t sentence anyone to shit. Though, really, mostly I’m amused by it and your serene confidence in making prescriptions about entire fields you seem to have little familiarity with.
> mostly in the dwindling twilight of their cognitive ability
Have you actually read SCOTUS trial transcripts? Because they come across as incredibly sharp people to me even when I don't agree with their views.
> A lot of modern psychology suggests they can't.
Actually there are psychology studies examining professionals who have to deal with bias (scientists, judges, etc) that indicate that the competent ones tend to slightly over rather than under compensate.
> Law needs a larger tool chest that can make argument based not on precedent, but on what exists right now in American society.
How is that different than legislating from the bench? Isn't updating laws a job best reserved for the legislature?
> Have you actually read SCOTUS trial transcripts? Because they come across as incredibly sharp people to me even when I don't agree with their views.
Yes. Get nine professionals together to write a subject matter document over a year. I don't care who they are, that document will appear at least superficially put together. I have lots of thoughts/criticism. This isn't the conversation for that, so here's just one of those criticisms:
> Attempts to justify abortion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much. Casey, 505 U. S., at 851. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.
Oh no, drug use and prostitution could be licensed too? Obviously those are terrible and morally repugnant. Backtracking is clearly necessary. What? Why? This isn't the 1970s and the nation isn't 100% on board with Reagan and the war on drugs anymore. A majority of Americans support decriminalizing sex work for example. This point IS contentious, but it's treated as though it's self justifying. It so obviously comes from minds trapped in a bygone era where traditionalist values went unquestioned, where appeals to them were enough.
> Actually there are psychology studies examining professionals who have to deal with bias (scientists, judges, etc) that indicate that the competent ones tend to slightly over rather than under compensate.
I'd love to see these studies. I don't know what over/under compensate means in this context or how that says anything about cognitive decline.
> How is that different than legislating from the bench? Isn't updating laws a job best reserved for the legislature?
The pace of technological progress is increasing. It has surpassed our legislative ability even under the best of circumstances. We aren't in the best of circumstances. Our legislature hasn't effectively represented popular interests for years now [1].
While I agree with the legislature is not representing the people well at all, I disagree on pace of tech change being the reason.
The reason is money. Specifically, bribes are legal here, even encouraged.
The product of that is a government representing money, not the people, and our law says we should be self governed, not lorded over as we have seen happen for quite a while now.
Many small disputes start as somebody threatening somebody else over like 1¢. Yeah like 1¢, I've gone through that, I've taken somebody to court after escalating the fuck out of a 1¢ cost. Small claims, went alone, the counterparty didn't go to negotiations, I spoke my piece, showed my evidence, corrected their translator because I spoke both languages perfectly, didn't interrupt the judge, suppressed laughter which the transcriber saw and smiled, but that's not harmful...and got everything I asked for, because I asked for exactly what I deserved. Compound interest too, 10% a year, so I can sell that debt to collections or hound that old landlady down myself, which would be a learning experience. Context, she cheated me out of the deposit and now owes me triple plus court costs plus another $45 item she cheated me out of, so like...payback is a bitch.
Biggest problem with small claims court, because there is a problem with it...don't sell popcorn. That is a problem, apart from that problem it's great but that is a problem and that means small claims has a problem...they should sell popcorn. And also the amounts are too small, small claims should go up to $50000, courts are the last to adjust for inflation, so it sucks.
And the judges get cheated out of wages can't even afford to protect themselves, the jury gets the minimum wage like what the fuck, that's disgusting, they should always get quadruple the minimum wage because they're participating in civil matters which is a legitimate priviledge of a law-abiding citizen.
The counter-point would be the criminal legal system, which has spectacularly failed to resist the influence of injustice, and not just historically! I suppose if you have only spent time in civil proceedings (depending on the type of proceeding...) you could hold the view that it is mostly free of corruption. On the federal judiciary, I think we really ought to dispense of the idea that political influence is somehow separate from jurisprudence. Recent events ought to have made that clear.
I'm a little bothered by how sacred the courts are in public imagination. I think it's actually harmful to consider them so. We deny that the courts are a fallible institution, which at times enables and empowers bad actors, at our peril.
I am always impressed by lawyers. Even bad ones. They all seem to have this unwavering intellectualism that governs how they speak, write, and engage in their profession.
For instance, I find Supreme Court opinions interesting to read because they have a tremendous gravitas and intellectual discourse. Compare this with reading memos of the executive branch for passing a bill or listening to politicians in congress.
Law and the profession of Lawyers is fantastically fine. I don't see this in any other profession, even Doctors.
-- having been through a fair share of business lawyers over the years - i've finally figured out what I like about the guy I settled on - risk assumption & mitigation - my lawyer explains the risks of different approaches - as well as the potential costs - many lawyers I've used in the past are expensive & cause a lot of issues - I'm not a lawyer - I understand business law at a basic level - if my lawyer says: do it this way - I'm inclined to follow that advice - sometimes that advise is exce$$ive - much prefer a lawyer who says: these are the ways it could be done - a sensible & seasoned lawyer is one of more powerful tools a startup can have - interview lawyers till you find the one --
-- our quake/ut clan used a double dash at the start & end of msg's on forums & irc back in the day - don't recall why our clan leader came up with it - we already had a -[nick|tag]- - either way it stuck with me - the middle dashes mostly because I think they are marginally easier to read - when I write my notes with a dash to separate the thoughts - i've found it's a bit quicker to skim through - happy to change if you find it annoying --
When I started handling a business, I had stumbled upon several problems dealing with our accounting firm (big 4). I caught several mistakes the people they assigned to our account made (such as including VAT in an six figure invoice that was exempted in a particular case. It almost seems they were working for the revenue service). Worse, once they made a mistake registering a new employee for social security, then sent us a recourse document to sign that stated that we made that mistake. It was classless and unprofessional as they either should have owned that in the document or used the passive voice. Our questions went unanswered. We ended up firing them.
When we were looking for a new accountant (another big 4), I made a document with questions that served to interview the lawyer, and all the issues served to draw up the contract and service agreement.
I used to see one to two emails per day from the first accounting firm. Our accounting is basic. One enterprise client. One invoice per month. Few employees. Social security cheque every quarter. Taxes every month. Salary bank transfer every month. Nothing fancy, but somehow the first firm managed to screw this up so badly it ended becoming a massive cognitive load.
have you thought about trying local small accounting firms/law firms for your taxes as opposed to monolith "big 4?"
big 4 people will have the best paid execs and partners but the leg work is made to be done by interns and stuff. On the other hand, in a small firm, its all hands on deck to finish/work on a case.
i am a lawyer/accountant in india handling business/litigation of businesses. as a representative of the smaller boutique firms, i would suggest you look up your local firms first as they are more inclined to give more attention and care to your work
>have you thought about trying local small accounting firms/law firms for your taxes as opposed to monolith "big 4?"
Yes, and we did. On several instances, we had silly problems like the accountant going to vacation right before tax deadline, other frustrations like communication problems.
>big 4 people will have the best paid execs and partners but the leg work is made to be done by interns and stuff. On the other hand, in a small firm, its all hands on deck to finish/work on a case.
That was one clause in the agreement as I said. Our account was to be handled by seasoned people and we had put in the contract that they had to answer our questions. Granted, they don't always know what to do, but you're not left hanging, but regulations here are another story.
>* smaller boutique firms, i would suggest you look up your local firms first as they are more inclined to give more attention and care to your work*
Done that. It's good advice. Maybe for another company but we needed our accounting to be tight given the direction we wanted to go, and the cost of doing so was almost the same as going with a smaller accounting practice.
>Yes, and we did. On several instances, we had silly problems like the accountant going to vacation right before tax deadline, other frustrations like communication problems.
are you saying a small firm's staff took a vacation during tax season? thats very strange. i have had partners in our firm delay their medical procedures til the end of tax season specifically because small offices run a tight ship and loss of a single person means the rest of the team has to stay up late. our office regularly does 82 hour shifts during tax season but i am not even bragging.
>Yes, and we did. On several instances, we had silly problems like the accountant going to vacation right before tax deadline, other frustrations like communication problems.
are you talking about an indian small accounting firm charging as much as a big 4? nice. i would love to be them.
the fees charged by small 1-2-5 partner firms are a magnitude lower than big 4 prices. Indirect tax audit fees is like 30-40K inr in a good small firm while big 4/big firms do not take on cases with fees less than 100-200K inr. But those are my anecdata between our fees and the fees i hear is being charged by friends on those places.
i would love to hear the anonymized specifics of the case, if you are so inclined to share with a total stranger.
>are you saying a small firm's staff took a vacation during tax season? thats very strange.
The company is an LLC equivalent in Algeria. There's no tax season. Tax forms must be submitted and paid before the 20th of every month. Social security before the 30th of every month, or quarterly if the company has fewer than nine employees.
Employees don't do their own taxes; instead, the company withholds the taxes/social security and pays on their behalf (retenue à la source).
And yes, the accountant was unreachable before doing our taxes.
>are you talking about an indian small accounting firm charging as much as a big 4? nice. i would love to be them.
I'm not sure how I miscommunicated that it was in India. It's not, to be clear.
It's not the small firms charging as high as a big 4, rather the big 4 charging something that's a multiple of smaller firms, but not an order of magnitude. The fees are subject to negotiatons before signing the contract.
The way big 4s are structured allows that. They're a rather independent firms in a network sharing a name.
you just explained indian indirect taxes. "tax season" in india is a yearly affair so that is what i wrote.
the indirect taxes, well, there are 2 due dates in a month. 10th and 20th. salary taxes are called "tds" or "tax deduction at source". same, monthly and a quarterly return.
we do have those "network firms" , actually the "big 4" in india is a network of firms who have taken up a name, there isnt any actual EY office, just a name of a network.
>And yes, the accountant was unreachable before doing our taxes.
irresponsible of them. we literally manage our outside-office life based on the 10th and 20th of the month so, 1-10 and 17-20 are no normal holiday days. employees are free to take a leave on 11th-15th or 21-28th of every month but the rest of the days, unless there is a serious emergency, leaves are not entertained much.
a small office usually does not have a tonne of clients (otherwise they would be big) so every client is important. Now why would this particular accountant would go on a vacation on "important dates", i dont know. i can safely say i have never done that and neither have my peers
One story about India. I didn't go there for the patent case I was on, too bad (I'm not Indian, so please pardon and correct my ignorance if you are).
They have barristers and solicitors, like the UK. The barrister is the one who goes to court for you. What I found interesting is, you meet your barrister for about half an hour before he goes to court. That's the extent of your contact with him.
His main job is to know the judges, the courts, and the hoops he has to jump through, and your solicitor has prepared him for all that. You hope.
Oh no India did away with the solicitor - barrister distinction. There's only one category now - advocates. So you'll find people who will use the title ``solicitor'' to describe themselves and the work they do, which is akin to what UK solicitors do - but every lawyer in India can go officially go to court and fight cases. The solicitor types are mostly seen in specialised fields like patents and revenue law, and these lawyers prefer to just do the legwork and not go to court (because as you rightly observed, some lawyers have more knowledge about the court and the systems that come with it). Generally such `solicitors' keep a couple of lawyers with them in a retainer-type arrangement - "whatever cases I get, I'll do the paperwork, and you go stand in court, and we split the fee a certain way".
Source: High school buddy of mine does this exact thing for land revenue cases.
also, if an Indian lawyer writes ``Barrister'' on their letterhead / business card, it means they've gone through training + been called to the Bar in the UK.
I've witnessed that, in Ireland though, which has a similar system. On a very technical case. The barrister failed to set up WIFI in the meeting room 60 min before going to the court, not even reading the error messages. Which scared me, but then he proceeded to explain the most complicated details in front of the judge. I was stunned.
You're assuming the barrister doesn't have theoretical knowledge, which I can tell you from experience is not true. Good lawyers have an incredible ability to grasp the theoretical underpinnings of almost anything very, very quickly.
Hm? I meant the exact opposite. The barrister in the GP's anecdote had intricate theoretical knowledge of a very technical subject matter, despite not being able (or not bothering) to debug a simple Wi-Fi problem, which surprised the GP.
> In societies somewhere in between, with a flawed rule of law, like India, these predictions are impossibly hard to make.
I think this is overselling the stability of the judicial process in the UK, US and other countries with a strong grounding in the rule of law. Without getting to political, sometimes judicial controversies spring up in the US. The issue is there are centuries of norms to fall back on. India doesn't have that yet - they have millennia of history in being the centre of civilisation but not in how the current legal system should be applied under the governance of the sweaty masses of voting Indians.
India is going to be more politically dynamic than the US at the moment because it is bigger and its ability to direct itself democratically is a bit younger. So judges are going to be harder to predict regardless of how strong the rule of law is - there is effectively less data even assuming a perfect rule of law.
The repeal of Roe v Wade was a gut punch for me, but I’ve known it was entirely possible for quite a long time. Plus some states have had trigger laws forever so that’s hardly surprising.
Yes, there will be instability, but it’s not the chaotic out-of-the-blue kind, unless you’re wilfully ignorant of the anti abortion movement, or extremely naive to the motivations of that bloc.
If you read the opinions they’re not very convincing. They’re making up principles to adhere to which did not exist before, and doing this for things that have broad support in the US population.
So it is quite chaotic out of the blue kind. Essentially the Judges are ruling by decree and will strike down any law that’s not explicitly enumerated in the constitution (and even there they will certainly weaken the law as we saw with Roe v Wade).
A lot of people think it's possible to read the constitution literally and divine what the words mean. To them, all of this makes perfect sense, because they can't see how the previous rulings ever fit what the constitution prescribes.
I sympathize, but clearly there is far more to our laws than just the words on that document. It's just the set of principles providing some foundation. Hell, we started with "congress shall make no law..." and extrapolated that all the way to pretty much any institution funded by taxes. Clearly a literal reading has limits.
In light of recent events, the only conclusion I can arrive at is that originalism as a legal theory was a decades-long project created with the express purpose of overturning the Warren-era jurisprudence. Roe is the first salvo, but there are many more regressions coming.
It was not created as a good-faith "alternate interpretation." It is not a cohesive or logical theory. It is, instead, a weapon, whose targets should be clear to everyone now. The way the weapon works is that you assume that it is being made in good faith and engage with it on its own terms. And then, again and again, get owned. Because the other guy is just making stuff up, and you, the sucker, are actually arguing.
I'm not quite in conspiracy territory yet, but I really would like to know what they are saying out loud behind closed doors at the Federalist Society HQ.
As a slight tangent since you seem to be knowledgeable: what is the motivation of the anti abortion bloc? I feel that godliness and a true care for life yet unborn is not it, because the bloc does not exhibit these qualities in many other areas...
Eh, I do think it's being repulsed at the idea of killin' babies.
Combined with not weighting the value of the choices of women or the impact on them or their bodies very high.
Look, uh, abortion is kinda a yucky thing. There's not some bright-line moment of change and investiture with consciousness and being that happens at the moment of birth. It's only when you decide the choices and bodily autonomy of the adult woman is more important than the potential of the life growing in her that you can support abortion.
I have no religious affiliation beyond accepting others’ religions (I’m not atheist because ultimately atheism is overly restrictive in its worldview) and agree that abortion is way more nuanced than what modern feminists present. Personally, I’ve been on both sides of the spectrum at different points in my life. I believe I am now somewhere in the middle and the reasons are not in any way religious. They’re based on my lived experience more-so than high school ethics. But man the amount that people want to reduce this to “fuck religion” is really annoying. No one wants to admit it’s a yucky issue.
> I’m not atheist because ultimately atheism is overly restrictive in its worldview
I don't consider myself atheist either. But I do not believe in any sort of god. I figure 'atheist' actually goes a little too far in making assumptions, so I prefer 'ignostic.'
On the bright side, people hear what they want to hear when you use that term. A good chunk of my extended family, who I otherwise quite like, are evangelical christians and not particularly tolerant of atheists (they wouldn't spit in your face, but it makes them intensely uncomfortable). They don't hear 'ignostic' they hear 'agnostic' and that is considerably less offensive to them. I do not correct their understanding, because the conflict is unnecessary and would not improve anyone's life.
> the amount that people want to reduce this to “fuck religion”
A lot of blame for this lies with religious folks trying to make laws based on their religion. I get a little irritated about that myself. Your religion is your business, but I have every right to live my life free from your religious beliefs. As soon as they started making it a core part of their political platform, it became more acceptable to adopt the "fuck religion" attitude in response.
What is uniquely interesting in this scenario is that there isn't any science supporting one side either. Totally agree about not pushing religious beliefs on society in the face of a rational understanding. That’s simply destructive and toxic. But in this case, we really do need to drop the rational vs religious rhetoric and acknowledge this is entirely a social issue. I think discussions would get a lot further if we were all able to frame it that way.
and "the gloves are off". If the entire government just spent 2 years justifying the coerced vaccination of the masses - all thought bodily autonomy thrown out for the greater good? Sure the Rightwingers are happy to play that game as well.
IMO comparing vaccination to women's bodily autonomy is a bad faith argument. Vaccination is about protecting society -- the protection it offers individuals who get the vaccine is incidental.
Anti-abortion folks have a stronger argument, IMO, by focusing on the liberty of the unborn child. Both sides refuse to give up ground, however, for political reasons. The logical conclusion is that there is a point somewhere on the scale between 0 and 9 months where a fetus gains enough liberty to qualify for rights of its own that can be balanced against the rights of the mother. I hope some day we can come together to define that point and codify it.
> IMO comparing vaccination to women's bodily autonomy is a bad faith argument.
That seems a somewhat inflammatory lead, but as far as I can tell you haven't explained or argued for it. It is obvious that the people who want to criminalise abortion believe it is about protecting society; if it were their babies they wouldn't need to criminalise it.
So far the only hard evidence about the COVID vaccines is that they offer excellent individual protection. It appears that the community protection just involves reducing the rate of spread rather than the reach, and since we're dealing with an exponential process it potentially has little practical effect. We ran a natural experiment in Australia that suggested there was no community protection effect. The spread of COVID through the community was basically instantaneous when lockdowns lifted in December [0].
> to qualify for rights of its own that can be balanced against the rights of the mother.
I'm not sure how much I agree. If you were grafted to my arm and that was keeping you alive... I would think it would be within my rights to remove you.
In the long run, "in the end", arguments are all that matters.
Sure, not many mature people are convinced. But people growing up and developing their positions are influenced. And even those of us who are not fully convinced tend to build some nuance into our positions to cope with the stronger arguments.
> what is the motivation of the anti abortion bloc?
I'm going to take this question seriously. The pro-life bloc is sincere when they say they think killing a fetus after conception is murder. They also on average have right leaning policy. Since you didn't list specifically what you meant by "exhibit these quantities" so this is guessing. I see a lot of arguments from left leaning folks that round to "if pro-life people were REALLY pro-life they would agree with all my policies (health care, climate change, gun control, ect)" and then use this argument to say pro-life people are liars. Nope, they just disagree about when killing the pre-born humans counts as murder.
A different framing can be revealing. For some years the state in the US with the lowest number of abortions per capita was Massachusetts where abortions are not only readily available but also essentially free. The big difference is that sex education and contraception are pervasively available. In the areas that support a ban on abortions sex education and contraception have limited availability. Instead people are supposed to abstain until they commit to a partner for procreation. Abstinence is unrealistic, so this results in youthful sexual experimentation starting families. There are effectively two different ways of living here with abortion being linked to sex education and contraception and how ideas about how families should be formed and pregnancies planned or not.
True, few cases go there, but the recent decision means, that there is no such thing as "settled law" anymore. The Supreme Court may change its oppiin on any thing, thus on lower courts it's harder to say "see, there was that decision, we follow it" but there is more freedom to derive from it.
here is a hearing for a person who has been incarcerated for 4 years and no charges have been filed against him. the court granted him bail but it only took the court 4 years to do so.
edit: that said, it is simply not a question of increasing the number of courts because apparently it costs milions and millions to set up a single courtroom.
things have definitely improved in the last decades as arbitration is given preference, there is things like "lok adalats" where small cases are heard in a quick succession so that case loads are reduced.
One skill of lawyers is that they understand the context of words and their meaning in the judicial system.
I often see untrained people making arguments on reddit about the law where they're picking apart words into the meaning they want to have them and constructing a legal parallel universe where the law means what they hope it means. And they can point at dictionary definitions for each word to back up their interpretation. And its not that they don't consider something like case law, instead, they just don't even understand that it exists.
Often times when there's two parallel readings which are theoretically possible one of them winds up with implications which are clearly absurd and a real-life flesh and bone judge will outright reject the attempt to twist the meaning of words and phrases. Every now and then a judge somewhere does let this kind of argument through and it makes headlines, but usually those kinds of cases are going to be overturned on appeal.
A lot of the legal system is that everyone over time has agreed that words strung together in a particular way has a particular interpretation that applies. If you go in trying to fight that interpretation you usually always lose. An attempt to buffer overflow the legal system based on dual meanings will usually wind up with a judge disagreeing with your nonsense.
Great points. I've also noticed that tech people can struggle to accept that the legal system has different outcomes depending on a person's intent, and methods for determining what that intent was.
There are many ways that interpreting law isn't the same as executing code, but that's the one I run into over and over. A judge isn't a CPU, and neither is a jury. They can differentiate superficially similar actions.
> Law is an impressionistic business, much less scientific than macroeconomics or inflation management
Not sure if this is an intended jab at economists or just an ironic misconception. Macroeconomics is arguably the academic discipline with the worst track record in terms of prediction, and inflation is the biggest mystery within there. I remember in 2014, then ECB president Mario Draghi was asked whether stimulus measures he had just announced wouldn't lead to inflation. His response (paraphrased from memory) - "Where is the inflation? We know it might come, but we don't see it. We see an immediate crisis, so we take are taking these measures to deal with that, once we see inflation we'll deal with that."
As one of my advisors in college (very senior, tenured macroeconomic professor, who had been on a US President's board of economic advisors) said to me,
"If you lined all the economists in the world up end-to-end, they still wouldn't reach a conclusion!"
If it's not a jab at macro it's the most insane thing I've ever read. Macro has a couple successes but, whenever I have contact with it, it mostly seems to be a collection of competing, politically-flavored voodoo ideologies with no clear way to decide which if any is illuminating.
Praising a profession that is notorious for its lack of a specific trait for having exactly that trait, while there are be countless other examples that would come to mind more readily, can indeed be a subtle jab.
> Good lawyers can predict what the judge will do, and can write and say things to maximise the odds of the judge doing what you want him to do.
And before you go to court, good lawyers and legal advisers look at a case also from the angle of what a judge would ultimately consider. So even if there's no judge around and nobody plans to have a judge around to solve the problem at hand, there's always the 'shadow of the law'.
> Law is an impressionistic business, much less scientific than macroeconomics or inflation management, more akin to craft than science.
When I went to law school, one of the professors in the first year told us "law is a prescriptive science, not a descriptive science". That was the moment I could not take it seriously anymore, or the moment from when on I had to take it more seriously. Whatever 'serious' might mean in this case. I still don't have a final answer for myself.
-bad lawyers creative an antagonist relationship with their internal colleagues in sales and contribute to distrust
-good lawyers spend a lot of time learning stuff about their clients (engineering, corp dev, sales, whoever) that seems "tangential" to the fundamental legal issues at first blush
-bad lawyers think they know the answer to legal questions facing the company
-good lawyers believe no one knows the answers but by combining their knowledge with that of their clients they can arrive at optimal answers
I believe Law is one of the fundamental industries of civilization, along with Textiles, War, Food, Medicine, and Shelter. Without a way for disputes to be settled in a (theoretically) predictable and well-documented manner, the other "fundamental industries" will suffer output and availability problems.
Midwifing is medicine, babysitting is not an industry, and formal education was invented in the 1800s. People have been capable of educating each other and watching children without full-time school for thousands of years, it's only recently that westerners completely forgot how to do it.
> People have been capable of educating each other and watching children without full-time school for thousands of years, it's only recently that westerners completely forgot how to do it.
You sound ignorant of how western society works. Cost of living has increased significantly in the west and globally so that both parents must work to provide for children, especially in urban areas. Work opportunities are often only to be found in urban areas away from grandparents and other potential caretakers. You should reexamine your priors, assumptions, and unnecessary biases. Or, have you completely forgotten how to learn?
Yawn. If you think all of that past-60-years crap is necessary for the survival of civilization, you deserve the modern lifestyle. I said "the fundamental industries", not "the current industries".
> Because on one hand, the judge believes himself to be bound by conventions and norms, the gravitational force of precedents, and the judge’s internal sense of what ought to be the result. On the other hand, these forces battle against various social forces and structural realities that are far more real than the canons about how you read statutes. Every judgment is the outcome of such a conflict.
Fascinating and excellent point, but I think I'd suggest one nuance to this interpretation. It works this way everywhere, but perhaps in India, the rule of law is in direct conflict with social norms, whereas other countries with rule of law have managed to align law with social convention to avoid this problem.
Imagine a judge interpreting a law that, for example, clearly assigns the death penalty to a child.
I'm not a lawyer, but this seems far too narrow, and focused on trial lawyers.
For instance, what about corporate lawyers writing up merger agreements? Or estate lawyers helping to plan for after death? Or family lawyers helping people through divorce?
Statutes obviously matter in those cases, in the sense that they always matter, but often aren't the main focus.
Even criminal stuff doesn't usually go to trial, and it's not because of some amazing insight in reading statutes. It's because often, the criminal is obviously guilty (or has no capacity to express why they are innocent) and it's just a negotiation over the terms of a guilty plea. Part of that is knowing the statute, but most is just knowing what other plea deals have been reached in similar cases recently.
You and I appear to be understanding the OP in entirely different ways.
The value of a lawyer is not in understanding statutes. It is in understanding the system, and being able to make predictions based on that understanding.
From the article: >> Sure, lawyers are (sometimes) good communicators who are (sometimes) well-prepared, but the real value proposition they offer is prediction.
Prediction matters in M&A, it matters in estate plans, it matters in divorce litigation. How can you properly prepare a merger without anticipating the things that might go wrong? How can you negotiate a cost-effective divorce settlement if you have no idea how the case will go? How can you plan for, well, what happens after your death, if you can't predict how the financials will play out?
IANAL. However, I have worked with lawyers when I worked in a large corp and one thing they did consistently well was highlighting risk and providing the business unit with information on where the landmines lie.
One of the very nuanced discussions I had in the last few years was with an IP lawyer when I started my company. His questions and solution was very insightful. I wouldn't have arrived at such an elegant solution myself.
Same, we paid $10k for a IP lawyer consultation which included 1) 2 hour meeting understanding the details 2) A memo with their judgement and advice, about 4 pages in total, delivered 3 weeks later.
During the first meeting, the attorney's assistant was jotting down every detail of our conversation. Questions were so incredibly detailed that it had us scratching our heads.
It is always impressive to work with lawyers, especially from a reputable IP law firm.
What TV has taught me lawyers do: they have a new case every week that goes to trial that week. The case is always won by evidence discovered during the trial, or by testimony of a surprise witness, or an impassioned speech during closing arguments. And the judgement is rendered right there at the end of the trial.
> The author seems to skip the entire solicitor component of the legal profession.
I think this is covered. Ultimately, everything comes down to court, but he said:
"and can write and say things to maximise the odds of the judge doing what you want him to do."
That is-- they know how a court is likely to look at things, and know how to construct contracts and advise clients so that if a dispute ever emerges they are likely to prevail... or rather, that it will be so obvious that they will prevail that no one will even bother with litigation.
I'm a USA lawyer so not hyper familiar (we have no such distinction here) but a barrister is licensed to put on a funny hat or wig and actually speak to/interact with a judge. If you're only a solicitor (you can be both) I believe you're limited to interacting with your client and describing the law for them.
I believe this distinction exists on the premise that barristers, being more independent from their clients, will be more honest and fair when interacting with the judge.
My point is that the vast majority of what lawyers do has nothing to do with judges. It has to do with drafting contracts and interpreting legislation and legal precedent. Talking about good lawyers sometimes being able to communicate and coming prepared is limited to a small subset of barrister work.
[edit for clarity]: I overstated the first sentence. I should have said that the vast majority of what lawyers do does not involve appearing in court before a judge. The ultimate goal of any legal work is certainly to ensure it would satisfy a judge should a conflict arise.
If people would never need to go before a judge for any type of action, there would be no need for a lawyer. A contract, when presumably violated, gets adjudicated by a judge. Everything a lawyer does is judge centric. Ultimately, the law is meaningless without a judge to decide its meaning.
I never said never. The point was that in the grand scheme of a legal career, it is exceedingly rare except for litigators or barristers, who are a minority of lawyers.
Incorrect, especially the statement that “the vast majority of what lawyers do has nothing to do with judges. It has to do with drafting contracts and interpreting legislation and legal precedent.”
I think you’re confusing arbitration or litigation as the aspects of lawyering which involve judges. In fact, just about all actions undertaken by lawyers are with an eventual audience of a courtroom and a judge in mind. Yes, you review contracts, yes, you interpret legislation: In order to achieve some goal, with an eye toward how it might be interpreted by a judge or opposing counsel. A lawyer that is not proactive about future defense is not fulfilling their duty as counsel and that necessarily means thinking about and considering judges and the courtroom, to one degree or another.
I think we are writing past each other. The article talks about lawyers being good communicators and being prepared, the implication being for court to argue in front of a judge. This is what I am saying is a tiny, infinitesimally small portion of the legal profession as a whole.
You changed the topic to be “with an eventual audience of a courtroom and a judge in mind”, which I don’t disagree with. This needs to be the consideration, even though the vast majority of work never ends up having that audience. But this has nothing to do with being a good communicator that shows up prepared, as per the article.
No, there was no change in topic, merely a correction to an incorrect absolute statement: “the vast majority of what lawyers do has nothing to do with judges.”
To say it has nothing to do with judges is the overstep. Those who practice know that the end-state of almost all legal analysis is “what would the judge say?” and it’s laughable to think that the prototypical lawyer doesn’t actively consider how their work will be interpreted by legal authorities.
As a layperson, you saw the commentary about communication and preparedness and you thought this was an article about professional decorum and skillsets. It is not: the author saved the punchline for the end, and tied his observations about the practice of law, jurisdictional incongruities, and legal culture under the deft umbrella of legal realism and its affects on the above. How does it affect or undermine lawyers’ interpretation of the law? How do judges weigh the various influences that impact their decision making? And, all this together, what kind of legal culture is created from the variance of these actors and factors?
But hey, let’s make this fun. You list an area of law that does not interact in any way with judges or jurisprudence, and I’ll respond appropriately.
Ok, I’ve added a clarifying statement. The word “nothing” in my post overstated the case based on my reading of the post with respect to communication and preparation for court.
Interesting viewpoint. Never thought of lawyering as essentially professionals contending with their own predictions of a judge’s behavior, but it makes sense.
> Law is an impressionistic business, much less scientific than macroeconomics or inflation management
It must be pretty unscientific if it’s worse than those.
From a consultative standpoint, a good lawyer is can be a reflection of being a good client. The same applies to business departments working with corporate counsel. Keeping questions and asks objective leads to objective response.
I spent five years and multiple lawyers, until I found a good one, fighting my mortgage company, trying to get my day in court. In the end, I never did, and mostly lost. That's the power of a corporate legal team.
Science and Law are the twin pillars of modern civilization - from a theoretical point of view. The approaches are fundamentally different - for example, a court will generally not throw up its hands in despair and say "we can't come to a conclusion on this as we don't have the experimental data yet, maybe in a few decades" - hence the practice of indefinite detention without trial, or indefinite suspension of a civil case - is not legally sound (Gitmo ahem). On the other hand, science has little to say about moral decisions, it simply reports on factual matters. For example, cannibalism is abhored by the legal system but as long as you don't consume the brains & nervous tissue (prion diseases etc.), and cook it thoroughly, flesh is basically flesh, say the scientists. Hence it can be rather unwise to let scientists make moral decisions (John von Neumann wanting to surprise-nuke the Soviet Union and slaughter a hundred million people is a notable example, as is Mengele's interest in acquiring human subjects for medical experimentation), and equally unwise to let lawyers make decisions about scientific issues such as the role of fossil fuels in global warming, or the safety and efficacy of vaccines (politicians who were shady lawyers in their past lives controlling the budgets of federal science-funding agencies comes to mind as a negative example).
The practice of science and law is, in contrast to the theoretical ideal, woefully corrupt, biased and untrustworthy in our modern world. Finding a lawyer or scientist capable of explaining complex topics in their domain without trying to manipulate things for their own personal benefit is a fairly difficult process, much like sifting dirt to find gems. The fact is, science and law requires intelligent individuals, but intelligence without any self-consistent moral code easily leads to the clever self-serving manipulator and con artist types.
Any business or government entity that needs to hire scientists and lawyers to make progress has their work cut out for them, that's for sure - assuming they want accurate reports, and aren't just trying to get 'reputable experts' on board who will tell the public that toxic waste is good for your health, or to find shady lawyers who will help hide the profits in offshore tax havens.
Judges should not be lawyers by trade; It creates an insidious incentive structure to make "law" into something far different from what we actually want.
Technically true, and practically questionable because of the psychological way the jury system operates? Which is to say, in the face of that absolutely correct power, the system has developed unfortunately clever ways to make this not seem like the case, see e.g. the undeniable truth, and yet incredibly powerful taboo of even mentioning, "jury nullification."
Eh nope. At least not in common law jurisdictions. I recently sat on a jury (murder trial) in a common law jurisdiction (Republic of Ireland) and the sitting Judge is the judge of Law, and the Jury is the judge of Fact. Apart from that the jury does what it's bloody well told.
Continuing with your metaphor, the symphony conductor "only conducts" -- he or she doesn't play the instruments.
The judge sustains or overrules objections. They decide what topics may be presented at all via the Motions in Limine [1] which are incredibly important. And much more.
Kinda. The jury is the "fact finder" so only they can decide someone is or isn't guilty. However, a judge has the power to dismiss a case before sending it to a jury. They can say, essentially, this case is easy to decide so we don't need a jury. I'll just decide it now.
Except the judge’s rulings determine what evidence the jury is shown. And the judge can overrule the jury with a JNOV - a judgment notwithstanding the verdict.
― Voltaire
Where US civil litigation (disputes) are concerned, a good lawyer looks to end the dispute before the cost of litigation approaches the value of the dispute. Once might argue the feature and bug of US tort law is the litigation becomes a third party in the case, against whom both sides must fight, hopefully finding a common enemy in its cost. If the cost is not enough to settle the dispute, you can add the unpredictability of judges and juries who on any given day can invert the obvious, wrecking a 'winnable' case.
A great lawyer, as opposed to a good one, keeps your fees down as you heads to trial against an opponent with seemingly unlimited money and appetite for litigation. They accomplish this by focusing on the core dispute and ignoring ancillary matters, often making their client (wrongly) question how committed they are to their case.
In sum, a good lawyer manages their client (always pushing internally for settlement), works to keep fees down until discovery closes, sows doubt in the other's sides confidence, establishes credibility with the Judge, and shows up meticulously prepared for trial.
As a thought exercise, imagine how hard all this is to do when you dislike your client, your managing partner is on you to increase billings, your kids need braces, and you're hoping to save a few bucks for retirement and an escape from a profession filled with bad lawyers.