E030 Myths of Lawyers

Key takeaway: Randy asks James a series of questions about the legal profession. What do lawyers do, where do they spend their time, when should you consider hiring one, and more. We discuss why women struggle, even though more women go to law school than men, and how lawyers are treated in countries outside the U.S.

Topics covered in this video: 
How much time do lawyers spend in courts litigating?
What good is a legal degree?
Lawyers specialize, which has a big impact on how they spend their time
Private practice (law firms) vs. other legal roles
In-house (organizational) lawyers – achieve company goals while reducing risk
When you should consider trying to represent yourself
What technology can replace already in what lawyers do
Some demographics about men and women in the profession
Lawyers in the US vs other countries
Randy’s friend’s experience dealing with a lying adversary
If courts don’t help arrive at “justice” or truth, what do they do?

Resources in this video
https://www.americanbar.org/about_the_aba/profession_statistics/ 

Transcript

James: 0:00

most lawyers in most countries, and certainly this is the case in the US work in private practice, they work in a law firm and most, lawyers work in small law firms of one to five people. And this gives rise to a whole bunch of consequences. Greetings, friends. I'm James.

Randy: 0:19

And I'm Randy. You're listening to The Passionately Wrong podcast where we challenge your assumptions, offer some different perspectives, and hopefully help you make better decisions. Hey, welcome everybody. my name's Randy Searles. I'm here with James Bejo, my partner, and you're listening to Passionately Wrong podcast. And today we're going to move on with the subject, leaping off the, where I headed the myth of the military. We're gonna talk about Miss of lawyers. So I have a lot of questions about what lawyers do and don't do, and I'm gonna pitch some of'em to James.

James: 0:58

All right, and before you start, I'm going to, remind myself of one of the lawyer jokes. I know. I try not to remember too many, and that is how many lawyer jokes are there, I think is the way it goes, and the answer is only one. All the rest are true stories. So we'll see how many true stories, we can come up with today. Randy, what's on your mind?

Randy: 1:18

I actually, I know there's different kinds of lawyers and. Probably jobs out there that lawyers do that I wouldn't expect, because for the longest time, probably all the way to my forties, I just thought lawyers were preparing to go to court. Going to court winning and losing cases, and then moving on to the next case. But I think, I don't think that was your experience for most of your career. I don't know if you've ever been in a real court to tell you the truth, and I'm, and I guess the first question I have for you is how, what is, what kind of lawyer are you? And then what kind of lawyers are there out there?

James: 1:59

Okay. So even for lawyers who specialize in litigation, which is going to court, they don't spend most of their time in court and most court cases never actually see the inside of a courtroom. Something like 90 to 95% of both civil and criminal cases settled before trial. There are still tons of trials, and tons of lawyers in court all the time, which makes you think, how can that be? It's, there's a lot of cases, so what kind of lawyer am I? I would say I didn't actually intend to be a lawyer. I went to law school and business school at the same time. I got a com combined degree, or I did the, a combined program with the intention of going directly into a business career. Cuz I thought, okay, a legal degree might be helpful to me in a business career. That part I think played. Correctly because of what I think a legal degree does for you. And this will go towards answering your question of what kinds of lawyers are there in principle, in the US system anyway, people go to law school to learn how to think like a lawyer. That's the theory. You learn how to be analytical, how to look at situations, and to pick out relevant facts, and then to apply relevant law to that factual situ. So really it's just a training in analytical thinking and from that perspective and viewed very broadly. Learning how to think analytically is helpful in all sorts of places and areas. People do specialize. They specialize in. Two ways, the types of content that they might focus on. So this guy studies criminal law. This guy studies family law, this guy studies tax law. The types of areas where you need to get expertise in a legal field are, there's a lot of them, and people can get very quickly into the weeds and then you become a tax lawyer and that's what you do for the rest of your life. Or an intellectual property lawyer. but also people find themselves working in different contexts. So you have people who go to the court system or the judiciary and they, are involved in that aspect of the law. Or people who, like me, go down the corporate side where it's mostly transactional. You're looking at contracts and documents and maybe you're doing negotiations, but it's a very different type of law than people who go down the other. Or you have people who are in what's called private practice, which means they set up their own law firm. I worked for a company, so I was an in-house lawyer. most lawyers in most countries, and certainly this is the case in the US work in private practice, they work in a law firm and most, lawyers work in small law firms of one to five people. And this gives rise to a whole bunch of consequences. But in principle, you want to think about it, lawyers in small law offices are very much entrepreneurs. They're out there drumming up business, and that business can come from a lot of different places. They can write will for people, they can do marriage counseling, they can do car crashes. So to answer your question, Lawyers in principal learn how to think analytically when they go to law school. They may specialize in a subject matter area that usually happens after they leave law school, and then they might practice in a variety of different settings for companies, for governments. in private practice, I went the company route relatively quickly. I worked five years in two different law firms, seeing how the private practice world worked and getting exposure to a bunch of different topics. But for me, also given my original interest in doing. Generally I found the working in, business, doing business law, corporate law was a good fit.

Randy: 5:39

That's pretty interesting. Yeah. In my experience in the military with lawyers was there were. the defense and the offense the, the, that went into court prosecution, the prosecutors, why aren't they the offense anyway, so they went into the courtrooms and then there was the, lawyers that were the advisors to the commanders. They were assigned at. Usually battalion level, and they looked over memos, contracts, whenever they were trying to make a plan, especially in war. the lawyer lawyers would look over the op operation plan and they would have to sign off on it. It's this looks like it's all legal. and, and I think nowadays they're probably even more important with all of the. Sensitivity, if you can put a memo out, Hey, don't use that word, change that word to this word so you're not offending, people of a certain, trans or whatever. or, L B G Q R T F, whatever the, letters are nowadays. they do a lot of, and, but they were just advisors. The commanders made the final decision. So a lot of times, and I think we talked about this before, it was just like, Hey, I want to do this. How do I do that legally? And he is like, you can't. And he is like, all right, I don't think you're the right lawyer for me. I want another lawyer,

James: 7:01

Yeah. When you are advising an organization, like if you're a company lawyer in a corporation, or if it sounds like you're one of the advisors to the commander of a military unit, which seems to be a similar function. if I was to summarize it to the fewest words, I thought my job consisted of risk management, compliance and risk management. You're really just trying to help the organization achieve its objectives in the way that. Most likely to help the company achieve its objectives or the organization, but also to, generate the least amount of risk. Certainly you don't wanna violate the law, but that's usually not the hardest part. There. There are lots and lots of great areas though, where you say, all right, we could do this. We could do this. This way is less risky. lawyers are not, however, I doubt this is the case in the military as well, but certainly in corporations. My job was never to eliminate risk. It was just to reduce risk to an acceptable. Um, businesses take risks. They do it on purpose, they do it all the time. So we have to say there are some risks that are okay, that are some risks that are not okay. And in my experience, Just like your commander's experience, it sounds like the best lawyers are the ones who, don't substitute their own risk tolerance for that of the organization. So if the organization says, this is the amount of risk we're going to tolerate, help me find a way to get there within that. That band. That's what we do, and that's where we really add value by understanding appropriately and using judgment appropriately about, okay, this is an acceptable amount of risk to take. And by the way, when you're taking risks, sometimes bad stuff happens. That's also then where the lawyer comes in and says, okay, did we behave appropriately under the circumstances? Can our judgment and our decisions be criticized after the fact? And the answer's always yes, but is it within an acceptable band? So I found that interplay between. All right. There is a risk-free way and that is to do nothing, but that's not acceptable. So what is the way that will work given this organization's appetite? And also it's not just the organization's appetite, cuz some organizations are extremely risk taking. It is. We operate in a bigger context. Society here wants us to behave a certain way. They're not happy if you're building cars that blow up when you, run into them or I don't wanna, yeah, to use an extreme example, there's, even if you're willing to take the risk, society might not be willing to let you take the risk, and that's part of your calculus as well, to figure out what's the right acceptable path for the organization to take. I found that to be. Challenging work, creative work, fun work. I really did enjoy, meeting those different needs of the different stakeholders and constituents. for me it was always a really rewarding, task.

Randy: 9:29

I, so I have a question about, I, this is not in your will house, but I think you probably know enough about it to give me a good answer. if you go to court and I guess this isn't for like murder or something, but if you go to divorce court or some kind of misdemeanor court and you ca you know, do you, in your opinion, can you adequately represent yourself if you honestly believe you did nothing wrong and someone's like suing you for absolutely some stupid reason. a and you're just like, I didn't do anything wrong. And you bring, you get all the paperwork together. And you don't want to pay a crazy amount for a lawyer could maybe you don't even have the money and it just seems ridiculous because this guy's just suing you for no reason. Can you go to a court having no knowledge of court procedure and just defend yourself and said, Hey, this is. Deal. I didn't do anything wrong. And this is what he's saying. I did. And here's the proof that I have that shows I didn't do it. Is that even, it seems very, maybe it seems like it could have been done in the past, but now it seems like really complicated.

James: 10:32

I'm gonna give you a lawyer answer, Randy, which is, it depends. And let me explain. I think there are circumstances where you can do that. one of the first examples of, chat like. Program you might recall was actually a program a law student wrote to help lay people respond to parking tickets or speeding violation. So a traffic violation. So if you think you were, you wanted to contest your fine, You could do it through this, chat function, which just asked you a series of questions and you've answered it, and that allowed a layperson to, to contest, and it was very successful and they've expanded it to a few other areas of law where the rules are pretty clear. It's not too complex, it's fact-based. If you can answer these couple questions, you can go ahead and represent yourself and defend yourself. I would say. If the stakes are not high, so if it's a matter of a thousand bucks or two and you can afford the loss, then you can try it, but. They also say there's a saying, and I think it's the same for medical professionals. A, a lawyer who represents him or herself has a fool for a client, you, it's very difficult. It's very difficult because the answers don't turn only on the. Justice of the situation or the facts of the situation. And this was the hardest thing for me, even as a lawyer, to accept after many years of practice, and it's what I hated, particularly about court cases. I have been in court a few times and I hated it every time because it didn't turn on the stuff that my. Daily work turned on, which is analysis of facts, logic. I can predict the outcome. Rational people could agree. Court cases turn on also human factors. Does a judge like you or not? Does the jury like you or not? And however, also the bizarre. Application of sometimes arbitrary and strange seeming rules. So if you don't know the rules, you can have all the facts on your side. You could be sympathetic, but you can get totally screwed because of a procedural problem. You didn't give notice within 30 days like you were supposed to. So it is a. A false economy most of the time, in my view, and I still mess this up myself, I have an example just this week of, having not gotten a lawyer to review the lease agreement when my daughter rented her apartment in the Italian speaking part of Switzerland, ah, I can do Google Translate and read this contract and we missed something important. So now we gotta pay six months extra rent because we can't terminate it when we thought we could. And that was me, a 30 year lawyer missing something. Which a Italian speaking lawyer, when I finally did hire one, saw in two seconds and said, oh yeah, you can't terminate until six months from now. I'm like, ah. So it's, what I mean to say is, yeah, sometimes you can represent yourself, but I wouldn't recommend it. Not for me, not for you, not for anybody. Spend a couple hundred bucks, get some assistance. And the reason is, a good lawyer who is experienced in that area will quickly be able to help you avoid obvious mistakes. You still might not win, but you can avoid obvious mistakes like, you didn't miss, a deadline or something like that. Yeah, I, the rules are complex. It is helpful to have lawyers who know those rules because they can efficiently get you a better chance of succeeding.

Randy: 13:42

Fair enough. I've always done got a lawyer, but I've always. Ben

James: 13:47

hires, remorse is real. You will regret it because it costs a lot of money and you can't tell that they're helping you No, it's true. I hire lawyers because I know it's smart to hire lawyers and I feel annoyed about it every time cuz I see how they're not as good as they could be or they waste my time and my money, or, it's, they're service providers like anything else, are you happy with every contractor you get to, reframe your kitchen or put a new bathroom in? No. you're ha unhappy with those circumstances as well. That doesn't mean they aren't good at their job. It just means yeah, service providers disappoint.

Randy: 14:17

Fair enough. what about, technology, AI and things like that? is that, Going the direction of replacing the need for lawyers in some circumstances. And you just gave me an example of the, Talking about your, speeding tickets or something like that. But now we got, I see all kinds of advertisements for, hey, go to our platform and you can do your will and you can do your, all these legal things that used to be you could just go to a lawyer's office to get done. Now you can do a lot of this stuff online or through other me.

James: 14:52

Let's say it this way. yes, it's already happening and I think it can happen a lot more and I hope it does. A lot of the things that are routine rules-based, predictable, should be replaced by AI and automation. They really should. You don't, Lawyers are expensive. They usually charge in an archaic, old fashioned manner of an hourly rate. So if you spend 10 hours at$300 an hour, that's 3000 bucks of your money gone for something that, automated program might be able to do for a fraction of the price and should frankly, What the artificial intelligence or the automated program can't do is help you with more difficult, judgemental type questions than the kind I was talking about before where you're in a gray zone and the answer is not black and white and they're, you're happy to pay for the expertise and for someone's judgment, but you're. Also as the lawyer more able to apply your judgment in situations if you don't have to deal with the minutiae and the trivia of, Hey client, go fill out this questionnaire and answer these 25 questions, and that'll get us a long way towards helping us give you the valuable advice that you're actually looking to us for. The answer to your question is yes, there's already some of it. Yes, we can do more of it. Why don't we have more of it already? It's because lawyers jealously guard their profession and we regulate the unauthorized practice of law. bar associations and states have been suing these companies that are made up of non-lawyers offering legal services. It's total protectionism. Those barriers have to be broken down. technically there's no reason why more services couldn't be offered in an automated fashion. And I think it's gonna come also, and maybe only when lawyers realize that we don't wanna be doing that routine stuff. I can't tell you how many contracts I reviewed, by the way, over the course of my career, where I thought to myself, my God, this is such a waste of time. We're negotiating the same language. The same types of damage limitation clauses, for example, or indemnities over and over again. And it's not value enhancing for us or for the customer. I would love to be able to replace that kind of, activity. Yeah. And it could be replaced.

Randy: 16:51

so I know, the statistics are saying like for med school, there's actually more women in med school than men, right? So have you, is that something that's, I feel like lawyers has always been a 50 50 in my mind. I'd never really thought about it, but I just assumed that, but, you went a while back and is there any change nowadays? is it becoming, over, over a one, one sex over another or anything like that?

James: 17:17

So the 50 50 phenomenon that we. and it's actually for universities in general and also in professions like law and medicine. More women now than men are going and graduating, but it wasn't that way. Even 30 years ago, the legal profession was pretty heavily dominated by men more than 70 30. And because of the fact that people can practice. Their entire lives long. There's no age limit or anything. As long as you're mentally proficient, you can keep practicing law. There's still a ton of, there's more men than women practicing lawyers. Probably about 60 40. But for 15, 20 years, the number of women graduating law school has been at least equal, and now it's more than men. So those numbers are coming closer and closer together. So to answer your question, we still have more men than women who are practicing as lawyers, but more women than men are graduating as lawyers. So those numbers are getting closer.

Randy: 18:18

But is that, is it, is the reason there's more practicing because the women graduate law school and decide that's not what they want to do? I've. I've met two women in my business that went to law school. One went to law school in Houston, I forgot where the other one went. And then they decided they would rather write books or be editors because they didn't like the, they didn't like it. That's not what they wanted to do with their life and they, or they wanted to spend more family time. One, I think is a mixture of both. And then, and then of course I know a lot of famous people like Megan Kelly, who's be a lawyer and now she's a podcaster. and she, before that she was a Fox, a Fox News journalist. is it more common for women who go to law school to say, you know what, this isn't what I thought it would be. Thanks for the knowledge. I'm gonna go do, go detour to something else. And do you think that the industry's gonna have still continuously have more men practicing?

James: 19:14

I don't. I think the reason for the disparity is, simply historical in terms of prior graduation rates and that lawyers hang around. I do think the legal profession has not figured out how to be welcoming to women in a way that recognizes their, different interests and challenges. So obviously, family and childbearing is not accommodating to women in the legal profession as it is in many professions. But law firms in particular, so I said to you, most lawyers are in private practice. Law firms have notoriously unhealthy habits when it comes to making, or expecting people to work long hours. bigger law firms in particular, which are attractive and pay good salaries, and it's a nice way to make a lot of money if you make a partner. Have completely unrealistic expectations that don't match up with, what I would say are many women's desires as they age. And therefore, those environments are still heavily dominated by men, more like 75 25. and even worse in some cases. That, that definitely is an issue with the profession, that it's not as interesting or as attractive to women. Men are stupid, if I can say it that way. We're willing to work 80 hour weeks for long times and maybe it doesn't feel like as much of a sacrifice to us, depending on what sort of, relationship we're in. So my answer to you is yes and no. in general, the reason for the historical disparity is really just the number of people who had gone to law school. Now that more women are going to law school, some environments are less accommodating private practice law firms in-house. By the way. in many companies there's more women than men working, because we're better able to manage people who either wanna work part-time or wanna, have. Not feel like they're sacrificing their ability to raise a family. And we see that for both men and women. By the way. It's not just that we're trying to accommodate women, we're just trying to accommodate people who wanna manage their law with their law practice, with their life.

Randy: 21:07

Okay. Fair enough. so when we talked about the military, I inserted some comparisons to other militaries outside of the United States, and you worked most of your career in Switzerland. So is I know that doctors and most countries, especially in most European countries in Canada, they're more socialist oriented. They get paid a lot less than American doctors. And, so I wonder if does, do lawyers get paid less in these other countries, or are they, and also are they doing the same kind of things and they treated the same kind of way? I think most people in the United States, when you say lawyer, they're like, oh, and they get sick and their stomach. But, I don't know if that's the same way everyone looks at it all over the world, or at least in Switzerland.

James: 21:53

So I can talk about the US and Europe. I saw a lot of lawyers, across Europe in my time there, and to a lesser extent, maybe India and China. I loved practicing law outside the US because nowhere are lawyers reputations worse in my experience than in the us. and we've brought it upon ourselves and it's societal, and there's a bunch of reasons for it, which I won't go into, but I do believe that lawyers have a poor reputation in the us. I believe it's partly deserved, if not entirely deserved. And it is different in my experience, practicing outside the US lawyers are still a respected profession like they used to be in the us by the way, in most European countries, in most countries around the world. it's a, an honorable profession. It is a well earning one, relatively speaking. Yes. The US in its exceptionalism pays lawyers even more, plaintiff's attorneys in particular. If you're a class action lawyer and you win a big lawsuit, you can make a ton of money. I would say that's rare. And it's a tiny handful of people who, hit the big league and make a hundred million dollars on a case or more in most countries. It's a really, well paid profession, but not ridiculously so you're not, you'll make a very handsome living and you'll never have to complain. so I think the relative pay gap and the relative perception of the profession is what matters. You're respected, you earn well, you have a good quality of life. It was great practicing as a lawyer in Europe and in Switzerland. Very nice. From that perspective, you could still tell people what you did for a living.

Randy: 23:25

And they wouldn't throw'em under your face. Yeah.

James: 23:28

Also, I think partly a question of how much competition there is for business. we have more lawyers per capita in the US than almost any country except possibly Brazil. We have 1.3 million lawyers in the US and that is a lot of lawyers running around trying to drum up business. And remember, most of them work in small law firms of one to five people. Hawking for business or looking to get business and you see billboards everywhere and advertisements on tv, which is a special function of law practice in the us. It's the only country in the world that allows lawyers to advertise for business. That creates an impression of lawyers and them being money-grubbing. That is unhelpful to our reputation. That doesn't happen anywhere else. or quiet, sit in our reserved offices and, have nice carpets on the floor and, it's a more respectable atmosphere.

Randy: 24:15

I don't really have any more questions. I have a comment about my experience, and I don't know if you have a solution, but I watched, a friend of mine go through a really, a military course. And the thing about the military is, The prosecution and the defense. The prosecution is the army. So if you do something against the army rules, it's the army against you. And you do get a military defense lawyer who works for the army, and he's usually not as high in rank as the prosecutors, which to me seems like. A very unfair thing. it's not, he's still got a career in the military somehow, and these people, there's not a lot of lawyer. there's a significant amount of lawyers, I guess can in, in respect to how many people are in the army, but they're not a hu They know each other. By the time you get to a not high enough rank, you've probably worked with that guy before if you've been in for 20 years. So it seems like a really a damned if you do, damned if you don't. I mean, you get your military lawyer, you can hire a civilian lawyer, but that's gonna cost a crap load of money. And if you're a low rank, you probably can't afford that. He did, my friend did hire a lawyer, a thousand dollars a month, civilian lawyer. The trial went on for two years. the, they didn't go to trial for two years, but there was a lot of other stuff going on that, that led up to the trial and and then he won. By basically proving that the person that accused him of, of sexual abuse lied. And, but then the person gets off, right? Because the person was never part of the court and you can't sue him. you could sue'em in private life, I guess he could have gone civilian and said, you, you ruined my career for these two years and I had to pay all this money out. But as a military court case, it was over. and I went to the prosecutor who was a friend of mine and I was like, how can the military let this happen? Well, it was the military against him and we lost. I was like, yeah. But the reason this whole thing started is cuz she. Lied. And then no one, the military doesn't go after her because she just wasted, two years of everyone's life to do this and all the money involved to bring in witnesses and all this stuff. why? Why would we do that? Why are we gonna let this person get off? I was like, we can't prove that she lied. We just. We just proved that what she said was not true in this court case. I was like, isn't that the same thing? I was like, n no. and then we didn't get to bring all the, some of this stuff, what we weren't allowed to bring forward because of this, and this. And I was like, I thought the whole point of this was to get to the truth. And I don't know if you have any comments on this, but it was the most, it was one of the last year or two, I was in the army. I never really was involved in anything legal in the military before. And I was a witness character witness for this guy and I was just like, how the hell did this even last two years, cost so much money and time and effort for everybody? And then the person who started it is just a boldface liar, which we can't prove a hundred percent, but she gets off to SCO free. that's, to me, that was just.

James: 27:31

what you're describing, Brandy is unfortunately not uncommon. And it's something that I think gives rise to the number of people who ultimately leave the legal profession. It is many times deeply frustrating that you, people think people go to law school because they're greedy and they wanna earn a lot of money. That's not my experience. I think most people who enter the legal profession, Quite some ideals about making the world a better place, about fighting for justice, about correcting injustice, and the fact that it is not the main purpose. Once you're out in the real world of the legal profession to correct injustice, that is deeply disillusioning to a lot of people. So the question of whether the court system is designed to arrive at justice or to resolve a specific dispute on the basis of what you can prove, what one side can prove or the other side fight against, it's not about justice, right? that, that takes some real getting used to, and a lot of people who are only tangentially or occasionally affected by the court system, that's something you have one experience with and you're like, oh, that was terrible. it's terrible for a lot of people all the time. You said before, how come it's not offense and defense? the reason it's not offense and defense is exactly what you were describing on the prosecutorial side in a criminal matter. It is the power of the US government or the military in the case of a military court, which is awesome, right? They have a tremendous amount of unlimited time and resources to bring to bear against you. It is offensive, and that's why we don't call it that because it seems too unfair. there are significant protections for the individual, certainly, outside of the military context where there might be somewhat fewer protections that the constitution and the procedural rules are designed to correct that imbalance somewhat, but it's still pretty scary. You're right, and depending on the quality or representation you can have what already looks like an unfair situation turned out even more unfairly because of that imbalance of power between the parties. so all I can say is I Sorry to hear about that. it's a bad story. It is the reason. we, have so many people unhappy with lawyers and so many lawyers unhappy themselves with the profession. I remember reading a statistic years ago, it led to me writing my first article actually about the stoic career path, about how the profession with the, highest level of dissatisfaction was associate attorneys, so new attorneys in law firms, they were the least satisfied out of every, professional group or employed group in the United States during this particular survey. Just because they were disillusioned very quickly about the difference between what their life was actually like and what they thought it was gonna be like. So maybe coming back to an earlier episode, you gotta keep an open mind to maybe changing circumstances. You can thrive in the law, but you've gotta find ways to both. Pragmatically, understand what it is you're doing and then still find ways to make the world a better place. I think civil rights lawyers, people who defend, people who actually do earn little money and go defend people in court, do a great job. Oftentimes they do correct some injustices. Just you're not gonna win every one of those, so,

Randy: 30:34

On that terrible note, Yes. all right, lawyers and the miss and the truths

James: 30:43

I dunno if we just spelled any myth today, maybe, but, I hope we've given people a more accurate sense of, it's not actually an easy job, but some people do it well.

Randy: 30:51

All right, hi. we'll see you next time. Thanks everybody. We'd love to hear what you think, so please comment on the show with your thoughts. We read all of your comments.

James: 30:59

Thanks for joining us, and thanks for subscribing. See you next time.