the lawyer writer

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Friday, July 15, 2005

Outlawyered!

I very rarely have Friendly Professional Relations with Real Lawyers. I will explain the terms thusly: "Friendly Professional Relations" are relations that I have with people who I deal with mostly for work, rather than social, reasons. "Real Lawyers" are lawyers who are not lawyers by trade or vocation, but people who have lawyering in their blood. (Notice I did not say "law in their blood"). Allow me to illustrate with the following story, which I will call "Outlawyered!"

I recently got an offer for The Project from Company B. Wanting to make sure that I did not violate the Confidentiality Agreement I had with Company A, I contacted my supervisor at Company A and suggested a workable compromise. I was surprised to receive a warning to immediately abandon The Project and warnings that Company A would vigorously litigate any breach of the Confidentiality Agreement. I was surprised mostly because Project B was pretty innocuous and could easily be done exclusively through common and public information, and because my supervisor and I have Friendly Professional Relations (supervisor is not a lawyer). This made threats of litigation in response to a friendly email a little...well, surprising. Especially since Company A and Company B are not competitors. A call between me and supervisor quickly ironed things out, (FPR were restored) and it became clear that The Project might be more trouble than it was worth. My supervisor suggested I talk to Company A's legal Counsel for better guidelines so that I would not have to clear every project with Company A.

Now, the phone call between me and Counsel went somewhat disastrously. Bear in mind that I had already decided to give up the Project, but I decided to find out exactly what Counsel felt the Confidentiality Agreement covered, and what it didn't. I suggested my plan of doing the Project with completely public information, and perhaps not even mentioning Company A.

Unsurprisingly, Counsel felt that the Confidentiality Agreement covered a broad range of projects, not just this project. And this is where Real Lawyering comes in. Counsel was cool, collected and calm as he completely outlawyered me. Before we could even talk about a compromise, words such as "unethical" and "misrepresentation"(not to mention phrases such as "blinded for money" and "trading on Company A's name for personal gain") were thrown at me. I, of course, began to get very angry. This is what humans do when they are accused of being sneaky when in fact they have gone out of their way to be honest. This is not, however, what lawyers are supposed to do.

Counsel and I continued on the phone for some time, one of us calm and the other one angry. Now, this is not a "take my side" story, because even I, knowing the extraneous details, would take Counsel's side. Not because he was right--far from it. It's virtually impossible, even accidentally, to disclose confidential information when all the information in your work product is already accessible to the public at large. And frankly, I'm not even sure I have the information he thinks I'm going to use.

But what's interesting is that I only realized it after I got off the phone, after I called a couple litigators I knew back from the firm days. What's interesting is that I didn't figure it out for myself. Counsel outlawyered me not because he had better facts and better logic, but because he knew how to keep me off balance and he knew how to spin as many arguments as he needed to back his version of the facts. As I got more and more aggravated, I couldn't even figure out why I was still on the phone with this guy. After all, I'd already decided to forego the project, (though not Company B altogether). And yet, there I was, arguing philosophy, ignoring my instincts that Counsel was just wrong. I think he could have gone on for hours. But I couldn't. I gave in.

The question is why? And the answer is this: for me, lawyering is a job. It's a suit I put on and take off. I generally enter relationships--professional, social, romantic--with my lawyer suit off. (You could say I enter into them in my birthday suit, actually). For others, lawyering is second nature. They will lawyer over a friend's excessive tip or how fast their taxi is going or whether their table in the restaurant should have multiple candles. It's in their blood, an instinct, and they're always ready to go. And boy, have they practiced.

As for me...my strained relations with these types makes it clear I made the right choice in choosing not to practice. Counsel and his ilk are made for the profession; they're who you want in the courtroom, representing you in tough, hard-nosed, take-no-prisoners litigations. As for me and the other lawyer hybrids out there (lawyerwriter, lawyerbanker, lawyeractivist)--we're here for other reasons. I may not know them yet, but I suspect they're more...human.

10 Comments:

Blogger maltelaurids said...

lawyerwriter:

you're right on both the logic and the fact that you shouldn't have lost your temper. think about it--did you really want to burnt bridges with company B?

that said, I'm glad that not all lawyers are Real Lawyers...there's hope that the rest of us might find out way...

1:15 AM  
Blogger maltelaurids said...

Sorry, I meant "burn your bridges with Company A"-that's who Counsel works for, right?

and BTW, I think it's pretty brave of you to share an example of a lwyering defeat, rather than just bragging about a victory, as so often is the tendency of lawyers (and Real Lawyers)

1:22 AM  
Blogger legis said...

Ugh. I agree with your sentiments. I've noticed this phenomenon since law school began. I think the terms alternate - Real Lawyer/Asshole. The people I really respect, though (besides lawyeractivist, lawyerwriter, and lawyermusician) are the Good Lawyers. You know, the ones who are meant to be lawyers and are good at what they do, but manage to remain honest while doing so.

8:00 AM  
Blogger the lawyerwriter said...

you're right...I hope I haven't burned my bridges, as I like Company A. But it may be out of my hands. Why did I lose my temper? perhaps it was insecurity; it's been a while since I've practiced the art of lawyerly negotiation...

and I'm always happy to share my defeats, particularly if they are enlightening...

8:29 AM  
Anonymous Anonymous said...

I was suprised to see a new post when I came in to work this morning at 9:15...

Why are you up so early in the morning? Aren't you a freelance writer? Did you stay up all night?

9:51 AM  
Anonymous Anonymous said...

you were right to feel insulted, but I object to the appellation "Real Lawyers." It continues a stereotype of lawyers as bullies. The Real Lawyers I know know that a friendly compromise is as valuable as winning every point.

10:32 AM  
Blogger the lawyerwriter said...

true enough...my intent in this post was never to insult anyone (not even Counsel), so I'd be happy to change the term "Real Lawyer" to something else. Any suggestions?

1:50 PM  
Anonymous qksail said...

This strikes me as more about negotiation than lawyering. The lessons about keeping your cool, and not caving in the face of relentless complex argumentation could equally apply to closing a business deal, buying a car, making your roommate take more responsibility for kitchen clean up, and making peace among warring ethnic factions.

it also begs the question: is it always a good idea to ask permission? When lawyers are involved, the answer is no more times than not.

3:23 AM  
Blogger the Light said...

You know, it happens to the best of us. Sometimes people just catch us in their net of B.S.

Have you ever read "Getting To Yes" and "Getting Past No"? They are pretty good books on negotiation that may help you with obfuscators such as the one you mention above.

1:58 PM  
Anonymous qksail said...

I miss my lawyerwriter! Where is she?

9:01 AM  

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