Oregon State Bar Bulletin — JUNE 2009
Parting Thoughts
Before Disaster Strikes
By John Berman

In my opinion, there are some parallels between the debacle in the world and the American legal system (and how attorneys in America behave). First, what I think we can now observe:

1. The American financial community (Wall Street) created financial instruments that were badly flawed. The cause was greed and hubris. People all over the world who should have known better went along and gave Wall Street deference that was not deserved.

2. The cultural ethic and mantra in the United States, at least since Ronald Reagan, has been that in America everyone can be successful, become a multimillionaire and live like a king. If you don’t make it, it’s your fault. Ignored is the obvious “truth” that while “anyone” can potentially become wealthy, not “everyone” can do so. Someone still has to stock the shelves and check people onto their airplanes.

3. Lawyers are ethically obligated to provide the court with the controlling authorities and are not supposed to miscite or misrepresent the law to the court, or to make claims for which there is no basis. Yet, I am seeing more and more claims based on gross distortion of the English language. Attorneys are taking the concept of advocacy and their notion of the “adversary system” to the point of using the legal system more and more as a business tool for orneriness. As a result, they “push the envelope,” far past anything reasonable.

To the extent that folks want to say that they did not see this economic turmoil coming, perhaps one can extrapolate and make changes before disaster strikes. What is the probability that law firms are at risk of imploding for the same reasons as the financial world? What changes are going to be forced on the legal “profession”?

America has been supporting a bloated legal profession. There are too many attorneys. So they are relegated to arguing about matters that should not be the subject of dispute. They bill for work that they have done many times before as if they had to do it over and over again.

When was the last time an attorney said to a client, “Here is where I think you should come out on this. I will talk with my counterpart on your behalf and suggest that this is the correct resolution.”? And how often has the refrain been, “Let’s be careful not to be too reasonable too early, or the other side will take it as a sign of weakness.”? Or, “I am a really smart lawyer. Watch how I can come up with clever arguments that will stun and impress the judge and result in an outcome that I would consider unacceptable if I were on the other side of the dispute.”?

In my view, many attorneys have become too self-absorbed. It never occurs to us that matters should be resolved near the middle of what we would expect if we were on the other side of the dispute, and without a great deal of payment to them for huffing and puffing.

I have been told that in Japan, when future events belie expectations that existed at the time of contracting, the Japanese “solve the problem” by revisiting the agreement rather than arguing about process. I don’t know if this is true, but it makes sense. When something comes up that was not expected by either side, or perhaps known and not disclosed, it is time to revisit the agreement. That is especially true where there are ongoing relationships.

Given the current crises, American business cannot afford to pay for what amounts to poor service at excessive rates. Great service is the early resolution of uncertainty, quickly and without causing, or at least reducing, stress. Quality of service will be provided by some attorneys, and others will flounder. Firms with bloated hourly rates and excessive hours should, by normal business principles, be in danger of imploding. After all, if one is paying for expertise, it should not take so many hours.

In my opinion the adversary/advocacy system is partially broken. Two thirds of the practice should be done collaboratively, in the way Warren Buffett claims he purchases businesses. For the rest, more emphasis on legal ethics would help.

Legal ethics call for honesty and providing judges the truth about the state of the law. If a change in the current law is requested, attorneys are supposed to forthrightly tell that to the judge. This mostly toothless obligation should be enforced more.

I think judges are misled so often they have come to expect and accept it. It is time to give the rules more than lip service. And we need to give our judges, who are human and who are continually facing two attorneys with opposing views asking them to be “Solomon” and “Oliver Wendell Holmes” every second of every day, more help and support in trying to find the “right answer for the right reason.”


John Berman is a Tigard attorney.

© 2009 John Berman

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