Between Two Worlds 0001

8/14/2019 Between Two Worlds 0001

1/6


2/6

goods. Professionals generally provide ser-vices and, particularly, services that promotethe "better" things of life; spirituality, educa-tion, health and peaceful co-existence.Business, on the other hand, generallymoves commodities for a profit, as high aprofit as the traffic will bear.My theme then is, as T. S. Elliot might haveintoned: "All is confusion. Nothing can bedone."

, To view the im pact o ftechnolog lj in turning a

profession in to a business,one need on ly look

to m ed ic in e. '

Or as Spack might have elaborated to Cap-tain Kirk: "All is confusion! Nothing can bedone! We are doomed!"Or as Seinfeld might put it for today's dis-engaged: "All is confusion! Nothing can bedone! We are doomed! Or whatever."What has caused the lawyers' descent froma lofty professional to a bottom-feeding busi-nessman? Is it technology? Is it somethingelse? Can nothing be done? Follow along.Technology certainly has changed thepractice of law. In the last 40 years, we haveembraced the electric typewriter, the confer-

ence telephone, the copying machine, theword- processor, the computerized database,the videotape deposition, the ASCIIdisk, thelaptop, electronic research, video-conferenc-ing, the Internet, e-mail and electronic graph-ics for the courtroom.Howmuch "better" are these modern mar-vels than the manual typewriter, the one-linephone and the overhead projector, which areabout all lawyers had 40 years ago? They arefaster. Is faster better in a contemplative pro-fession? Admittedly, one seldom hears "thebest thing about Learned Hand's opinions isthat he wrote them really fast."These modern marvels produce more factsfaster than could have been imagined 40years go. But facts are not information, just asinformation is not knowledge and knowledgeis not wisdom .:Do we still need knowledgeand wisdom in this contemplative profession?Is this still a profession? Absolutely not, if youattend a seminar of managing partners orread the legal press. This is a Business, with acapital "B" and damn proud of it. Lawyersshould be ashamed of two centuries of put-ting on airs of "professionalism" while theirclients, businessmen all, not only toleratedthese pretensions but also made more money.Is there a fundamental difference betweenthe business ofbusiness and the profession oflaw? Yes, at least originally. "Profession"meant dedicating one's life to the bettermentof mankind or society without much possibil-ity of making a lot of money. Business. in-volves creating, maintaining and -exchangingproperty, hopefully, for a profit. Law allowsthese activities to occur in an orderly mannerwithout bloodshed. Law applies civilization asan overlay to the warfare of commerce. Law isabout civility, not business, just as literatureand art are about civility, not business. Civi-lization and commerce can, and generally do,go hand-in-hand, but they are not the same

41


3/6

. . - - - - - - - - - - - C f i

thing.To view the impact of technology in turn-ing a profession into a business, one needonly look to medicine. The result of usinghighly complex, immensely expensive ma-chines like MRI'sand artificial hearts has beento improve healthcare, reduce suffering andprolong life. It has also raised costs to a levelthat can only be supported by spreading therisk; hence insurance, Medicare and HMO's.The injection of vast amounts of private andpublic money has created pools of wealth thatcan be tapped by the imaginative. Thus, a dayin the hospital now costs $15,000 and you'relucky to get seven minutes with your doctorand then only if you're really sick.Although medicine provides more curesthan ever before, the public is suspicious of,and antagonistic towards, healthcare pro-viders due to the immense costs of the ser-vice and the perceived wealth of its practi-tioners. These practitioners don't like it mucheither. Ask any older doctor and he or she willtell you that medicine is not a profession anylonger. It's not even much of a job.Technology is not the sole cause of this de-sire to turn the profession of law into a busi-ness, although its high cost certainly putsmore economic pressure on lawyers. Thereseems to be a desire to make law a "business"just because it sounds, somehow, more re-sponsible and more profitable. But the law isnot a business, and, at least as far as litigationis concerned, could never be a business.Why? Because litigation is government.There's the plaintiff, the defendant and thecourt. One third, the most important third, isa branch of government that cannot now, orever under our Constitution, be made a "busi-ness." So how can a litigator be a "business-man" or "businesswoman" if the office is thecourtroom, a public charge, not a private one?The answer is, he or she cannot.

42

"... the notion that a business is clothed with apublic interest and has been dev~ted to thepublic use is little more than a fiction mtend-ed to beautify what is disagreeable to thesufferers. "That's the United States Supreme Court,by Oliver Wendell Holmes in Tyson &Broth-er us. Bomion, 373 U.S. 418, 446 (1927). Ifstare decisis is still the basis of Americancommon law, we lawyers seem to be espous-ing a view that was overruled before it was

adopted.The main problem, of course, is with the"customer." (If we're going to be a business,we might as well adopt its nomenclature.) I goto a professional for advice and if it's good, Igo back. r go to a business for a product andifit's good, I buy it again at any place that sellsit the cheapest I have no loyalty. Why shouldI? A product is a product.And if WP. keep insisting that we are run-

" d t"ung a business, we may see our pro ucturn into a conuuodity. It is a axiom of busi-ness that all products eventually become acommodity, that is a product sold in bulk atthe cheapest possible price. Consider thecomputer. 'Twenty years ago, a computer soldfor a million dollars and up. Today, one maybe free with a twelve-month subscription tothe Internet. Or the cell-phone ten years agosold for $4,000 each. Today, they are one centwith a purchase of service.Could this happen to law?MarkMaraia, theprincipal ofMark M.Maraia Associates, thinksso. Summarizing predictions from lawyersaround the world at a recent seminar inPhoenix, Arizona, he writes:

"During the conference, there were predic-tions that white collar jobs (which includeslawyers) "ill drop by as much as 60% to 90%\\itILinthe next ten years. Legaljobs won't justmvsteriouslv disappear. What will happen ism~re and more legal work will become com-moditized, As that happens, what lawyerscharge for their services willdrop by as much


4/6

~ - - - - - - - - - - - - ~ - - - - - - ~ - -

as 90%. That will make practicing law muchless profitable and it will trigger a mass exodusfrom the profession. For example, there is awebsite called "LegaIOpinion.com" whichcharges a flat fee of $39.95 for an opinion onany number and variety of legal issues.Cheesy? Maybe, but it's going to impact all ofus. Youmay be thinking, it won't happen onhigh-end deals or it will only affect transac-tionallawyers. Guess again. It's certain to hap-pen in every facet of our profession. It's simplya question of timing."

, There seem s. to be a desireto m ake law a "business IIjust beca use it so un ds,

som ehow , m ore resp on sib leand m ore pro fitab le . '

Put aside the cheesiness and the confiningaspects of turning law into a commodity. Whatabout the public's perception that Holmesnails in the quote above. Lawyers have sunkso low in public esteem that the lawyer joke isa cliche, but just when you believe it can't getworse, it does. Here's Eric Idle of MontyPython fame in his novel Road to Mars:

"Fame is a t.erminal disease. It screws you up .worse than your mom or dad. Somewhere inthe late 20th Century, the pursuit of famebecame a way of life. Suddenly, everyonewanted to be famous. Newscasters, journal-ists, weathermen, astrologers, cooks, interns,even lawyers for God's sake ... "

Not only do we intend to be bad, but it'sdamn presumptuous of us even to believe wehave the ability to be bad.And it gets worse. In February of the newmillennium, we hit the furmy papers. It's onething to be the butt of a wry cartoon present-ed to the New Yorker reader's rather flexiblemind. The mind of the furmy paper readertends to be blunt and the joke better be sim-ple, obvious and universal. The dialog fromHagar the Horrible:"Doctor: Sometimes I'm embarrassed to bemaking so much money as a doctor.Doctor: I have to ask myself am I doing this tohelp people or to acquire great wealth?Doctor: As a matter offact, it's bothered me somuch that I'm thinking of changing jobs.Hagar: What would you be instead?Doctor Something that would benefitmankind without a thought of personal gain.Hagar: Like What?Doctor: Maybe a lawyer. (Stunned look onHagar's face.)"Obviously, technology alone does not bringlawyers down to the furmy papers. But it is

hard to discern what other social or econom-ic forces would cause rational human beingsto declare themselves lepers. Marcel Proustsaid:"A fashionable milieu is one in which every-body's opinion ismade up of the opinions of allothers. Does anybody have a different opin-ion? Then it is a literary milieu."Since mine appears to be definitely a dif-ferent opinion, I will illustrate what might behappening with a literary stew:

"So law behaves like literature where onefellow writes it this way and then every-body has to do it because if one fellow cando it and befamous then any fellow can doit and be more rich and more famous thanthe first fellow who we all say joys to him.But the second fellow does not do it as wellas thefirstfellou: and the thirdfellow copies

43


5/6

the second fellow and so on until it's notgood at all. But so many fellows are doingit that it must be right and it must have aname and it is modernism until it is so badthat it is post-modernism and then it isneo-post-modernism or something evenmore dreadful. So one lawfirm says this isa business and maybe makes some moneyand then the second law firm tries to copythe first law firm but gets mostly the badpart right and then the third law firmcopies the second law firm and so on untillaw is something that must have a name sothe name is business and lawyers believeit. Joys to them also. "Can the law actually be turned into a com-modity? Perhaps more simply than you think.Take a securities fraud class action in which99% of the cases are settled after 9 to 36months of lawyer-intensive, expensive litiga-tion. Damages can easily be calculated on acomputer by selecting a "true value" of thestock and calculating the difference betweenthe selling price and the true value on a day-by-day basis, and then multiplying it by thenumber of shares sold each day. This maytake a day of computer time. Because of argu-ments over the actual "true value," the lengthof the class period, and the variable of "insand outs," there will be a range of damages asopposed to an absolute number, but the rangewill be accurate. The cost to estimate dam-ages would be approximately $100,000.Discovery could be conducted by threeindependent "examiners" who would reviewcorporate records for five days, then decideon a range of probability for liability, saybetween 55% and 75%. The cost of this exer-cise would be approximately $75,000. A third

input would be a computer algorithm whichcalculates the random aspects of jury ver-dicts, including a possible variable of no liabil-ity. Input the three variables into a furthercomputer program that generates a result bychoosing and manipulating the variables as a

jury might do on a random basis.The parties can then take that result andenter other variables such as the financialcapacity of the defendant and the possibilitythat the defendant will go bankrupt. Therewill be a final number. 99% of the cases willsettle, just as they do now, at 1/100th of thecost currently incurred. And note that not asingle lawyer is needed.Why that's preposterous you say. Is it? Thiscomputer-generated result is exactly the waythe Los Angeles Superior Court determinesalimony payments today in an area of the lawthat involves real people who receive realtrauma from the result. There is no consider-ation of fault, common need, common goal,human impact, no input of judgment or wis-dom, no arguments by the lawyers, just acomputer program.Nothing can be done. Or can it?First, let's stop calling our profession abusiness. Let's start emphasizing the civilizingaspects of the law and the judgment neces-sary to implement it. Second, use technologyas an "end" to the practice of law, not as anend in itself. Stay away from giving free ad-vice on the Internet. Stock transactions thatyielded $150 for the broker one year ago nowyield $7 thanks to the Internet. Throw out thetechnology that isn't really useful. Third, getsome pride. Business is business and it's forbusinessmen. Law is a profession and it's forlawyers. Law requires judgment, imagination,civility, diligence and prescience. Don't un-derestimate how these qualities may beincompatible with merely making money."Life in a Dwelling One Jo Square." That'sthe euphonious title of a Basil Bunting poem.A "jo" is Japanese for ten feet. "Life in aDwelling One Jo Square" is so mellifluous youmay remember it. That's what the legal lifewill be like when law becomes a commodity.

44


6/6

Documents

Between Two Worlds 0001