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Introduction

Seriously, this is not a profession for idealists. The practice of law is frustrating for numerous reasons, but one big one is the difference between what law is supposed to be and what it actually is. Honestly, law is basically a shared standard of rules that are, at best, haphazardly and inconsistently applied, if at all. "Justice" is a word rarely said by attorneys and judges, but often said by clients who have a mistaken belief as to how much time the justice system has to devote to their case. The legal system, or at least the civil justice portion of the legal system, exists to close out disputes with an award or non-award of money and let parties move on, that's it. There is no time or money to prove principles, prove points, or vindicate anyone. I tell clients that they will never get satisfaction no matter how much money they spend or how much they "win" their case. They will only be left older, wiser, and usually poorer. I also have to keep reminding myself that actual trials resulting in judgments represent about 1% of cases, so various components or factors in those cases are over-represented. After more than a dozen trials, the factors I have observed in cases that went to trial are simple: (1) entrenched parties, (2) wildly different views of liability and/or appropriate settlement numbers, (3) bad facts on both sides, and (4) willingness to roll the dice. The cases that go to trial reflect an apparent underlying reality that I discuss here as well.

The underlying reality of law

Over the years I have learned that human nature is the problem here. Some people hate each other, are greedy, and are unreasonable. Other people are making semi-rational business decisions but are blinded by their emotions or want to make a statement to promote or deter future litigation. The cases where people are reasonable and rational simply don't go to trial. The lawyer's role in all this is to be a facilitator and present the client's case effectively, not independently judge which party is in the better position. The judge's role is theoretically to ensure a fair trial. But due to the vagueness and sometimes intentional ambiguity of the law, there is no one-size-fits-all rule or application of that rule. I personally can't wait for the debut of artificial intelligence in the law, which will probably simplify, streamline, and support better dispute resolution. Because seriously, the current "pay to play" system is deeply flawed at a fundamental level. And just think: there is a whole world of legal systems out there that are less effective and more unfair than in America, where there is "liberty and justice for all."

Pay to play

Unless a person qualifies for legal aid, there is a huge gap between regular people and people who can afford attorneys in a civil lawsuit. If there is such a thing as a typical client of a private practice lawyer, then that person is the owner of a small to medium sized business enterprise who can afford to spend a significant amount on attorney fees. In my career I would say that I have mostly represented small business owners and professionals, essentially the top portion or cross section of the community I am in. Currently that area is Silicon Valley, California, which probably has the highest per capita rate of millionaires in the world. The good news is that there are plenty of clients who can afford my services, especially at my bargain rates. The bad news is that there are many people in other areas who are not being served due to the shortage of qualified lawyers who charge less money than average. I have literally no reason to take cases outside of the San Francisco-San Mateo-Santa Clara County area unless it makes perfect sense to me due to the quality of the case or who the client is. I'm not alone in this view either; there appears to be a sort of network of firms in this area that all know each other. Not exactly a cartel, but at the same time, definitely a peer group. The point here is that Silicon Valley is one of the few areas where there are a lot of people who can afford legal services. Go out to Manteca some time and it's back to normal America in terms of people being under-served. This is a "pay to play" system in the sense that access to justice costs real money, and few can afford it. I go to sleep at night with a clean conscience, but I'm often troubled by what I have seen in terms of clients who can't have their day in court because they can't afford it.

Cynicism

It's fashionable to be cynical as a lawyer, but it's also necessary in order to provide sound advice to the client. I can tell you this: the judge in a typical case will assume that everyone is lying about everything, and his or her job is to find or build the least incredible story and make a decision based on that set of facts. Same thing with mediators, who are the most manipulative role players I have ever seen and who tell both sides that they are going to lose. After hundreds of cases in which I saw the same patterns, I decided to write about it, and that was the genesis of this online practice guide.

Lessons learned

  1. No one is ever happy with the outcome of their case.
  2. Almost no one feels like they got their money's worth.
  3. People hate their attorney most of the time.
  4. Parties hate each other with a passion.
  5. People's emotions cloud their judgment severely.
  6. Mediators lie, cheat, and steal in order to settle cases.
  7. The legal system perpetuates inequality.
  8. Law is a weapon for the rich, and a system of control for the poor.
  9. No one cares about other people.


Last updated: July 6, 2018

© 2018 Andrew G. Watters

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