Lawyers cannot do “simple”
Any darn fool can make something complex; it takes a genius to make something simple.
-Pete Seeger
Lawyers must be darn fools, because they cannot do “simple.” They write documents that are too complicated to comprehend. They talk to people in such complex terms that no one can understand them. They call a 25-page document a “brief.” Ironically (true confessions here) this section of the book was the hardest for me to write, it is the longest section, it is the only chapter with subsections, took forever to edit, and I’m still not satisfied with it. My struggle is a personal testimony to the fact that lawyers don’t know how to do things in a simple or straightforward matter, even if they are really trying hard to do so.
Lawyers value complexity and ambiguity far more than simplicity. There are four primary reasons for this –
1. Lawyers are educated to find levels of complication in every situation;
2. The “law” becomes more and more complicated over time, by design;
3. Lawyers live and work within a complex and antiquated judicial system that is anything but simple; and
4. Lawyers lose sleep for fear of missing any detail.
Lawyers are trained to make everything complicated
Lawyers are trained to never take anything for granted, never view any position as the only correct one, and frankly, after a time, we get annoyed with those who cannot see the fine nuances and potential arguments, pro and con, in every single situation.
Early in my married life my new husband joked with me that my answer to any “yes” or “no” question was usually “that depends.” Its corollary, equally abhorrent to him, was the phrase “not necessarily.” In other words, I didn’t seem capable of giving a straight answer to any question. “Is the sky blue?” “Well, that depends. Sometimes it’s blue, different shades depending on where you are, what the weather is like, or the time of day. On cloudy days the sky is really shades of white and gray, and sometimes it looks red, or pink around sunset, or when there is a nearby fire . . .” I mean really, the possibilities are endless, to a lawyer. This becomes even more annoying to clients who are relying on their lawyers to help them make decisions that fundamentally affect their life. “Will I win my case?” “That depends.”
In fairness, lawyers truthfully don’t know “the answer” to anything; giving anything less than a firm “maybe” wouldn’t be truthful. Based on the nature of the law (which changes daily), how it is researched, and how it is applied, a lawyer cannot be confident that any answer is ever “right.”
The skill of “issue spotting” — finding every potential argument or factual wrinkle in any scenario — is crucial to both admittance and survival in law school. “Issue spotting” in layman’s terms is taking a microscope to every problem so more problems or ambiguities can be found. Something that appears to be simple on its face must be dissected and scrutinized until it becomes complicated and ambiguous, thus fodder for dispute.
Here’s how “issue spotting” plays out in the context of drafting a contract (and one of the reasons why legal documents are so long).
John and Mary are neighbors who help each other out from time to time. When Mary decides to go on vacation, she asks John to take care of her dog while she’s gone, and he agrees. She promises that, in exchange for him helping out, she’ll bake him one of her famous apple pies. They memorialize this agreement between them on a cocktail napkin. It reads as follows:
I, John, agree to feed Mary’s dog Buster while she is away on vacation. In exchange, Mary will bake me an apple pie.
Signed June 4, 2015
John ____ Mary
Although John and Mary are not thinking in these terms, this handwritten document has all the elements necessary to be an enforceable contract. John agreed to do something (take care of the dog); Mary agreed to give him something in exchange (bake him a pie); they both agreed to the same thing; and the agreement had a legal purpose.
Is there ambiguity in this agreement? John and Mary don’t think so, but any competent lawyer or even law student will see it is full of holes, ambiguities, and has room for misunderstandings and disputes. For example, what are John’s responsibilities here really? If he feeds Buster once while Mary is gone, has he fulfilled his obligations? Mary would not think so (and Buster, of course, would also heartily disagree if he could talk). Maybe, just to be sure, this agreement could be a little more precise. And, while we’re at it, perhaps we should add last names to make this a little more formal. Here are the edits.
I, John Brown, agree to feed Mary Smith’s dog, Buster, every morning and every evening while Mary Smith she is away on vacation. In exchange, Mary Smith will bake John Brown me an apple pie when Mary Smith she returns from vacation.
Signed June 4, 2015
John Brown _____ Mary Smith
There, much better. But, you know, this doesn’t specify when Mary is going to be away on vacation. Maybe it will be the same time that John was planning to be on vacation and that wouldn’t work at all. Maybe feeding the dog for a week is fine, but what if Mary decides to stay away a month? Is that still okay? Oh, and that apple pie. When will it be delivered? The day Mary returns from vacation? Sometime in the year following the dog feeding? I mean, if John isn’t going to get a pie for a year, is it really worth the responsibility of caring for the dog? And what about that apple pie? Does Mary mean a basic apple pie, which is good, or is she promising to use that special recipe with the streusel topping and drizzle of caramel? Maybe the agreement needs a few more details, to remove these ambiguities.
I, John Brown, agree to feed Mary Smith’s dog, Buster, every morning and every evening while Mary Smith she is away on vacation. Said vacation is scheduled for July 1–8, 2015. If Mary Smith wants to change the dates of her vacation for purposes of this agreement, she must get prior consent from John Brown. In exchange, Mary Smith will bake John Brown me an apple pie, specifically Mary Smith’s Special Family Secret Recipe Struesel and Caramel Apple Pie within one week of when Mary Smith’s she returns from vacation.
Signed June 4, 2015
John Brown ____ Mary Smith
Now Mary starts looking at it a little closer, you know, to make sure that her interests are adequately covered. What is John going to feed the dog anyway? The gourmet dog feed she usually feeds him, or the crappy, inexpensive food he feeds his own dogs? Better make sure it’s the right food. And what if something happens to poor Buster during the week she is gone? He’s not a pup anymore after all. If Buster is collapsed on the bedroom floor and needs emergency vet care, will she really feel that John is taking care of him by just putting out a bowl of food? Absolutely not! That is not good enough for her Buster. And what is that about so severely limiting her vacation dates? What if she decides to stay an extra day, or leave a day early? Really? She has to check in with John to get “permission” to alter her vacation dates? More editing needs to be done.
I, John Brown, agree to take care of feed Mary Smith’s dog, Buster, while she is away on vacation as scheduled below. “Taking care of” Buster includes, but is not limited to the following: (1) feeding Buster every morning and every evening with Extra Special Gourmet Dog Food; (2) ensuring that Buster has not suffered any accident or other health problem during the duration of the vacation; and (3) taking appropriate actions to care for the health and wellbeing of Buster, if necessary, taking him to the vet. while Mary Smith she is away on vacation. Said vacation is scheduled for July 1–8, 2015. If Mary Smith wants to change the dates of her vacation for purposes of this agreement, she must get prior consent from John Brown, which consent shall not be unreasonably withheld. In exchange, Mary Smith will bake John Brown me an apple pie, specifically Mary Smith’s Special Family Secret Recipe Struesel and Caramel Apple Pie within one week of when Mary Smith’s she returns from vacation.
Signed June 4, 2015
John Brown ____ Mary Smith
John looks at the new agreement. Really? I’ve owned dogs for four decades. I certainly wouldn’t let a sick dog just lay on the floor for days. I would take Buster to the vet, but Mary has to pay the bill. And I’m not driving across town to the spa-inspired vet office Mary uses; I’m going to the neighborhood vet who is just as good, but charges half the price. Now, as to the food thing, fine, as long as Mary is stupid enough to pay twice as much money as she needs to on fancy dog food for her precious dog (there’s just an unhealthy connection between those two; Mary needs to find herself a boyfriend) that’s fine, but I’m not buying it. That’s her responsibility. And seriously, for all of this, I want more than one apple pie. I want a pie a week for the next month. More editing is needed.
I, John Brown, agree to take care of feed Mary Smith’s dog, Buster, while she is away on vacation as scheduled below. “Taking care of” Buster includes, but is not limited to the following: (1) feeding Buster every morning and every evening with Extra Special Gourmet Dog Food (said food will be provided by Mary at her expense); (2) ensuring that Buster has not suffered any accident or other health problem during the duration of the vacation (limited to any health problem reasonably observable by John Brown upon his twice daily visits to feed Buster; John Brown shall not be responsible to check on Buster any more frequently than that); and (3) taking appropriate actions to care for the health and wellbeing of Buster (within the bounds of reason, in the sole discretion of John Brown), if necessary, taking him to the vet (the choice of vet being made by John Brown at his sole discretion, and any expenses will be reimbursed in full by Mary Smith immediately upon her return from vacation regardless of the outcome of any such treatment). while Mary Smith she is away on vacation. Said vacation is scheduled for July 1–8, 2015. If Mary Smith wants to change the dates of her vacation for purposes of this agreement, she must get prior consent from John Brown, which consent shall not be unreasonably withheld. In exchange, Mary Smith will bake John Brown me an four apple pies, specifically Mary Smith’s Special Family Secret Recipe Struesel and Caramel Apple Pie, one per week commencing within seven (7) days of within one week of when Mary Smith’s she returns from vacation, and continuing on a weekly basis until all four pies have been delivered.
Signed June 4, 2015
John Brown ____ Mary Smith
You may be laughing or shaking your head, but this dynamic plays itself out every single day in lawyers’ lives. I remember one contract that the parties edited back and forth for over one year. The parties met in person to negotiate a deal over a business dispute. There were seven or eight of us, parties and attorneys from each side. Each side made their case for their position, the other side responded back. Huddles of each side were interspersed with group conversations. After about six hours a deal was struck. A term sheet was prepared and signed, everyone shook hands. Mission accomplished. Then the attorneys started hammering out the specific contract language. Each draft was responded to with a new round of changes and modifications. Phone calls went back and forth and back and forth. Finally, over a year after the handshakes, a final contract was signed. In fairness to the lawyers, this wasn’t just idle arguing. Many of the terms being hammered out had the potential to materially change the overall value of the deal to one side or the other, and neither wanted to diminish the benefit of the bargain they had struck.
At least this year-plus contract finalization process had some substance to it. That is not always the case. Lawyers engage in the same type of vehement back and forth for even tiny, inconsequential details, because lawyers don’t know when to stop. I’ll never forget a battle over a joint report to be filed with the court where my co-counsel and the opposing attorney had a huge argument just hours before the deadline whether a certain sentence should be in bold or italics.
The ultimate prize for such frivolity is awarded to a lawyer whose identity I will not disclose. I had been working with the attorney on a joint document to be filed with the Court. The case had been very contentious for months, and this report was no exception, but we were down to the final details, and after accepting his last round of changes, I thought we were done. It was Friday afternoon and I wanted to get out of the office. So, I went ahead and electronically filed the document with the Court and headed out the door. I hadn’t even gotten home yet when I got a call from my paralegal. Opposing counsel had emailed and was livid! How dare I file the document without his final approval?! I called him back and explained that I had just accepted his most recent changes and made no more edits of my own so I didn’t think he needed to review it again. I told him to feel free to review it again and, if there were any problems, I would take care of withdrawing my filing and refiling a corrected version. Several hours later I got an email with his “changes.” He wanted to fix the signature block. Here’s what was wrong with the signature block –
__\s\Crazy Attorney___ instead of ____\s\Crazy Attorney____
Before you go cross-eyed trying to figure out the difference (and Medium doesn’t even allow me to demonstrate it), I’ll tell you. The first two spaces of my signature line used the underline key while the rest of the line used the underline format function, resulting in an ever-so-slightly lower line for the first two spaces.
It was that day that I stopped hating opposing counsel on that case. All I felt was pity. How terrible it must be going through life that way? I was enjoying a sunny afternoon while he was dissecting the most minor of typography differences that made no difference to the substance of the document, our clients, or the Court.
(excerpt from “Lawyers Decoded: Essential Knowledge for Saving Money and Reducing Legal Hassles” available now on Amazon.com) (also sold under the less politically correct title “Why Lawyers Suck!” also on Amazon)
