In light of the response to my Wall Street Journal op-ed published June 3, “Will Lawyers Act with Honor After Covid? / My profession should support safe-harbor rules, not capitalize on uncertainty”, I will be hosting a free Covid-19 liability prevention web briefing to be held:

Monday, June 29 at 11:00AM Central Time, and

Tuesday, June 30 at 2:00PM Central Time.

This briefing is designed for executives, and describes how you can run your company’s operations to reduce Covid-19 negligence exposure. Although it takes into account court rulings, statutes, and regulations — this is not a law lecture.  It’s about how CEOs, CFOs and other P&L executives can manage reopening of their businesses in an unreasonable and dynamic risk environment.

Please let me know of your interest in attending by using the form at the “Contact Us” tab above, or email me directly at joel [at] webberpc.com.

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THE POINT

As former general counsel and legal innovator Jeff Carr tweeted the day after the above headline:

“OMG!… Wait, didn’t this story run in 1998, and 2001 and 2008 and 2014 and, well every year there’s a survey? Oh well, might be a slow news day.”

DISCUSSION

This is old news. Really old news. Though I guess it doesn’t hurt to run a survey for current, empirical confirmation.

According to a corporate general counsel group called “In the House” and LegalBillReview.com, 73% of in-house counsel believe their legal department are spending too much on their outside counsel.

Chris Colvin, head of “In the House”, offered some context:

“He noted that the survey was sent to in-house counsel before the pandemic caused by the new coronavirus began. He said he expects the number of in-house counsel who think they are spending too much on outside counsel would increase if the survey were done today.”

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THE POINT

This series is about how the legal system’s subjective and arbitrary character constrains your lawyer from answering “yes” or “no”.

Sometimes your lawyer doesn’t want to be pinned down to a definite answer, and you, as the business client, need to nudge him or her for some specificity.

DISCUSSION

In this fourth post I address the ultimate “human factor” in the law: All legal advice and representation comes to business owners and executives through attorneys.

You see, attorneys are people (fill in your own lawyer joke here).

On my first visit to Paris I found myself at dinner with Dr. H. — a family friend and Princeton PhD in physics — a senior official with the Paris-based Nuclear Energy Agency of the Organization for Economic Cooperation and Development (OECD). He peppered me — a newly minted lawyer with a New York firm — with questions about my work.

“You see, Dr. H., the legal system is riddled with subjectivity. It’s all about opinions — of judges, of regulators, of legislators, of disputing attorneys, of lay people acting as jurors.

“Unlike your discipline — there’s no empirical test by which to evaluate whether a judgment is valid or bogus. It’s nothing like nuclear physics, where a consistent scientific focus guaranties objectivity.”

[Cut me some slack here. I was 26. I had everything pretty much figured out, and saw everything in black and white. As I aged, I came to know less and less, until I became the dumb guy whom my kids will tell you they met upon their arrival in the world a few years later.]

Dr. H. (patiently) replied:

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In light of the response to my Wall Street Journal op-ed published June 3, “Will Lawyers Act with Honor After Covid? / My profession should support safe-harbor rules, not capitalize on uncertainty”, I will be hosting a free Covid-19 liability prevention web briefing to be held:

Monday, June 29 at 11:00AM Central Time, and

Tuesday, June 30 at 2:00PM Central Time.

This briefing is designed for executives, and describes how you can run your company’s operations to reduce Covid-19 negligence exposure. Although it takes into account court rulings, statutes, and regulations — this is not a law lecture.  It’s about how CEOs, CFOs and other P&L executives can manage reopening of their businesses in an unreasonable and dynamic risk environment.

Please let me know of your interest in attending by using the form at the “Contact Us” tab above, or email me directly at joel [at] webberpc.com.

Continue reading

THE POINT
This series is about how the legal system’s subjective and arbitrary character constrains your lawyer from answering “yes” or “no”.
Sometimes a judge’s personal idiosyncrasies distinctive, well-informed judgments may drive the outcome more than an objective view of the law or evidence.

DISCUSSION

My own introduction to this came when I was a prosecutor in Manhattan. When my colleagues and I brought a felony case we — collectively — knew all of the personalities among the judges on the trial court to whom that case might be assigned.

THE POINT

This series is about how the legal system’s subjective and arbitrary character constrains your lawyer from answering “yes” or “no”.

This post addresses the situation where a higher court has ruled on a specific point of law, but the judge presiding over your particular case doesn’t like that holding — and finds a way to avoid abiding by it.

DISCUSSION

One of this blog’s goals is to help business owners and executives to make better management decisions through a practical understanding of how the law works.

This post is the second in a four-part series in which I explain how the legal system can prevent lawyers from giving a “yes” or “no” answer to questions about whether or not a particular management decision will create legal problems.

Because the legal system is based on human decision-making — while scientific “laws” are not.

Consider the following circumstance:

A higher court overrules a lower court, and the lower court then throws a judicial tantrum and refuses to follow the higher court’s holding offers a principled argument for why the higher court’s ruling does not apply.

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THE POINT

This series is about the how the legal system’s subjective and arbitrary character constrains your lawyer from answering “yes” or “no”.

This post addresses the situation where lower courts disagree with each other’s rulings — and a higher court will need to step in to resolve their differing judgments. But meanwhile business executives need to make decisions.

DISCUSSION

One of this blog’s goals is to help business owners and executives make better management decisions through a practical understanding of how the law works.

This four-part series takes up the question: Why can’t my lawyers say “yes” or “no”? Why can’t I get a straight answer?

With all my attorneys’ conditions and caveats — how can I make a business decision?

My own answer:

Lawyers give guidance based on what the legal system has decided … so far. That legal system is made up of people. And any person’s judgment contains — to a greater or lesser extent — a subjective or arbitrary element.

Put another way: What lawyers tell you lacks the objectivity we associate with physics or chemistry — due to the human factor.

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THE POINT

In February of this year the American Bar Association took action that illustrates how attorneys’ views of their “ethics” rules can have the effect of shutting down innovation in the delivery of legal services, thereby protecting their incomes from unwanted competition.

DISCUSSION

It’s impossible to prove what someone has intended by an act on their part.

But the ABA’s February action had the effect of protecting their lawyer-members from unwelcome competition by shutting down consideration of changes in the “ethics” rules proposed for consideration by the ABA Center for Innovation and four of the ABA’s standing committees.

In February, the American Bar Association, acting through its House of Delegates, considered an ambitious proposal of its ABA Center for Innovation and four standing committees relating to innovation in the delivery of legal services. Here “innovation” meant opening doors to possibly better and cheaper ways to serve clients.

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The Point

The chief clinical officer of a 51-hospital system:

  • “We are now leveraging telehealth technology in ways that will last long after this pandemic.”
  • “The severity and suddenness of the Covid-19 emergency have hastened changes in how we deliver care.”
  • “Things we’ve been trying to accomplish for years all happened in the last six weeks.”

Discussion

So wrote Dr. Amy Compton-Phillips, chief clinical officer of Providence, a Catholic not-for-profit health system with 51 hospitals, in the Wall Street Journal, on March 28, 2020 (subscription required): “After the Pandemic, A New Frontier for Medical Technology: Telehealth Systems are Growing Rapidly in Response to the Crisis”.

Her essay is well worth reading as a lesson in how to make things better before an emergency forces one’s hand.

And it recounts how the urgency induced by the pandemic sped-up these efforts:

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THE POINT

It’s been governors and other government executives who’ve responded to COVID-19 — over protests from physicians and their medical societies — by removing the red tape of doctors’ protectionist rules to speed healthcare to those who urgently need it.

DISCUSSION

In the midst of a pandemic, we need physicians’ medical knowledge and clinical skills to get the best care to those infected or at risk of being infected. But we don’t need their insular, self-interested approaches to the way such medical knowledge and clinical skills are delivered to those who need them.

It’s worth noting that important parts of the red tape impeding health care responses to COVID-19 were created — and defended by — the medical profession and institutions promoting its interests.

And it took people outside of the medical profession — specifically, governors and other officials focused on the larger picture (i.e., public health) — to get us past those barriers that organized medicine had placed in the way of those results:

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