Friday, May 06, 2011

Hard Work Can Come at the End of Long Work

Seth Godin illustrates his theory of hard work vs. long work by alluding to the legal profession:
Long work is what the lawyer who bills 14 hours a day filling in forms does.

Hard work is what the insightful litigator does when she synthesizes four disparate ideas and comes up with an argument that wins the case--in less than five minutes.
Which lawyer do you think is billing by the hour and which is working on a fixed or contingency fee?

Seriously, though, I suspect Godin hasn't spent much time looking at what lawyers actually do for a living. Yes, you may find what you think to be the seminal case or come up with what should be a winning argument inside of five magic minutes, but that doesn't mean that opposing counsel will read the case the way you do. Or the judge. I recall a trial in which a judge, responding to an objection that a witness's own out-of-court statements were hearsay, "That's not what they taught at my law school." If it's on the finer points of the rules of evidence, fat lot of good the "winning argument" is going to do in that court. And then, of course, you have appellate courts in which your perfect precedent may be revised, narrowed or reversed.

The lay notion that there's always a statute or case exactly on point is one that doesn't often hold true in legal practice. There's almost always a way to distinguish a case based even upon slight differences in fact or in the legal issues presented. The five minutes it takes to find the best, most relevant case may be followed by several hours preparing a motion and brief to present the argument to opposing counsel and the court.

Frankly, in most cases the issues aren't that complex. When you're looking at a car accident in which both drivers claim that they had right-of-way, the brilliant, winning idea would presumably be, "The other driver is lying or mistaken." But pulling together all of the relevant evidence, photographs, and witness statements necessary to prove that to a court will be a time-consuming process. Yes, on rare occasion you might find the damning memo buried in boxes of documents delivered by the opposing party and know, within minutes, that you're going to settle or win the case, but odds are those documents were delivered by truck - that is, you're only going to find the memo by plodding through dozens to hundreds of boxes filled with similar documents.

It may, in fact, be the attorney in the forms-driven practice who is better able to follow Godin's suggestion - for example, he can hire a paralegal or two to complete the paperwork, such that he can serve more clients while performing less work himself. Or he can create an automated system in which the client fills out an initial online questionnaire and 95% of the spaces on the forms are automatically populated with the client's information, significantly reducing the amount of work necessary to revise and refine the document to the client's specific need.

Back when I was in law school, a graduate student who was studying math and computer science suggested that it might, ultimately, be possible to create a computer program to analyze case law, then fork through the cases to automatically find appropriate outcomes to legal disputes. Godin's comment reminds me of that proposal - it would be nice if it were true, but in the world of legal disputes the human factor is simply too great for that to ever become a reality.

2 comments:

  1. Your final sentence on the human factor is what's most important. There is no reason to reduce and submit the practice of law to some algorithm or machine process and plenty of reasons not to. Where we have already subsumed humans and other animals into the machine, e.g., factory farms and cubicle farms, our humanity and souls have been sacrificed.

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  2. I would not take significant issue with a computer program that actually served to increase the predictability and fairness of the legal system while reducing arbitrariness and subjectiveness. For that matter I would be impressed if Supreme Court nominees would stop pretending that they are human computers who, when presented with the data, will fairly and objectively apply established rules consistent with the nation's constitution and laws. Neither is going to happen.

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