Archive for October, 2011

Clifford Winston is an idiot

Wednesday, October 26th, 2011

In last Monday’s New York Times, I saw this little gem from Clifford Winston of the Brookings Institution.  Mr. Winston argues that law schools and state bars have operated to preserve the “monopoly” lawyers have on the practice of law, including the preparation of wills and similar forms.  Apparently, Mr. Winston hasn’t been to Office Depot recently.

But the more significant point of Mr. Winston’s argument is his position that the practice of law should be thrown open to all comers, regardless of education, licensure, or anything else; that it should be a laissez-faire marketplace—a wild west—with no restrictions on those offering services, because, of course, any idiot can practice law.

Mr. Winston argues that state bars don’t actually do anything other than protect lawyers from competition.  They don’t protect consumers from incompetent or unethical lawyers, and here’s his proof:  “the state disciplinary agencies that cover the roughly one million lawyers practicing in the United States received more than 125,000 complaints, according to an A.B.A. survey. But only 800 of those complaints — a mere 0.6 percent — resulted in disbarment.”  Apparently, Mr. Winston has never heard of such a thing as a non-meritorious complaint or a sanction short of the maximum.  Indeed, in Mr. Winston’s world, it appears you either get the death penalty for jaywalking or we should just throw out all the traffic signs.

Mr. Winston claims that this sort of open marketplace would allow consumers to demand open information about their lawyers.  But what stops them now?  In Texas, anyone can find out about disciplinary action taken against a practicing lawyer by contacting the state bar.

Mr. Winston points to the legal-information provider Avvo as a source of information for consumers.  In particular, he notes that Avvo has fought states for the right to obtain information about attorneys’ licensing and disciplinary records.  But he fails to note significant biases in Avvo’s ratings.  Avvo allows two types of recommendations—those from clients and those from other attorneys, the former having no effect on an attorney’s “Avvo rating” and the latter having significant effect.  But it’s not just any attorney’s recommendation that will boost an Avvo rating.  Only the recommendation of an attorney who is himself registered with Avvo counts toward the rating.  And, why not?  Because Avvo is ultimately in the business of advertising lawyers, not rating them.  In short, Avvo suffers from the same bias Mr. Winston ascribes to any state bar—voluntary association automatically creates credibility.  Of course, in the case of the state bar, one must at least graduate law school and pass a bar exam.  Avvo requires only a thirty-second sign-up process.

I am no great fan of the State Bar of Texas.  I believe it is an institution that exists, in large part, for its own propagation and for the benefit of its officeholders.  It is a far cry from the self-regulating, grassroots organization that it was when it began.  Is the state bar the best mechanism for regulation of the legal profession?  Perhaps not, at least in its current form.  But is Mr. Winston’s vision of a laissez-faire marketplace, where consumers have to guess at the competency of their counsel, and minimal legal education is anything but guaranteed, an improvement?  I rather doubt it.


Serial comma-ntary

Wednesday, October 12th, 2011

Note:  I originally wrote and posted this back in January, so if it seems familiar, that’s why.  It came to mind recently as I was helping a friend with proofreading some federal court filings and tightening up a few issues to the court.  With a bit of explanation, I believe I have converted him to being a disciple of the serial comma, not that I think he was necessarily against it in the first place.  At any rate, since the topic was on my mind (and I haven’t posted anything this week), I thought a re-visit was in order.

“Clarity is the politeness of the man of letters.” – Jules Renard, Journal, 1892.

A law school friend of mine, an accomplished partner at a major employment law firm, recently registered her opposition to what she termed the “extra” comma included before the final conjunction—the “and” or “or”—concluding a list.  She refers, of course, to the serial comma, also known as the “Oxford” or “Harvard” comma.

Indeed, my friend’s position has some support. The Associated Press style manual proscribes the use of the serial comma in the name of saving space—always a concern for newspaper reporters. But, while lawyers do face page limits when preparing some documents, clarity rather than space must surely be the greater concern.

As for my own feelings about the serial comma, I cannot state it any better than did Bryan Garner, a noted authority on legal writing, in his excellent book The Winning Brief, 2d ed. (Oxford University Press 2003):  “Although journalists omit the serial comma to save space, virtually all writing authorities outside journalism recommend consistently using it to prevent ambiguities.  When it comes to legal writing, is it even a close call?”

Garner then gives the following exemplar: “As soon as Jones recognized that he had a potential conflict of interest, he placed calls to Standard Oil, Fidelity Bank, Thompson and Lee and Barnes.”  The question that arises is: how many calls did Jones make? Four? Five? Is “Thompson and Lee” a single entity, or is “Lee and Barnes”? Inclusion of a serial comma makes all the difference and turns a muddled mess into a succinct list.

At a time when our national discourse has devolved into little more than verbal fisticuffs, we should all aim for politeness in our written matters. As Renard noted, politeness means clarity in this context, and use of the serial comma could therefore be considered just plain good manners.


Things that make my head explode

Thursday, October 6th, 2011

Apologies to Kendall Gray for cribbing one of his catchphrases, but it seemed appropriate in response to . . . well, this.  Just . . . wow.

The gist of this abstract of a paper by Brian Flanagan, part of the law faculty at the National University of Ireland, Maynooth—and I’ll confess I haven’t read the paper, itself—is that the legal meaning of a statute and its literal meaning are two different things.  Now, that’s really not a huge revelation to most lawyers.  We’re used to dealing with technical meanings, and there are times that a word might be given a special definition by a statute or it may have a particular meaning through its use as a term of art in the profession.

But Professor Flanagan goes a step farther by stating that, if literal meaning isn’t determinative of legal meaning, it’s also not even relevant to legal meaning.  That is, it doesn’t even weigh in the decision of a correct legal outcome.

Even acknowledging that Professor Flanagan’s argument is an academic one and not an argument concerning practicality or application, I’m still left scratching my head.  The basic principles of statutory construction applied by Texas courts require that the literal meaning of a statute is the first place to look for its legal meaning, and if the statute is unambiguous, it’s the only place to look.  Does this lead to less than perfect outcomes sometimes?  You bet; sometimes even outcomes that seem just plain wrong.  But does it fulfill the ultimate purpose of law—to provide a set of rules for civil society that everyone can understand and abide by?  Generally, yes.  And it does it much better than the sort of ivory-tower regime suggested by Professor Flanagan’s essay.  The latter would seem to allow legal decisions based on what someone thought was a “preferred” outcome, rather than what the law said was the right one.  That way lies corruption.  And that way lies madness.

The meaning of the law should be accessible.  It shouldn’t be reserved to lawyers or academics because it belongs to us all.

Tip o’ the hat to Cheryl Stephens for the link to the Legal Theory Blog.