The Culture of Law (11): Time is Money

We’ve been talking about money, now let’s talk about time — a natural segue for a profession that logs value in 6 minute increments.

Working long hours is a law cultural norm, and never mind that it’s no secret any more that working too much is counterproductive. This Time article featured popular author, TED talker, and professor Brené Brown:

“[Ms Brown] talks about how people use the idea of being “crazy busy” as a sort of armor—a justification for not bothering to pause, evaluate what’s going on in your life, and reconsider decisions regarding lifestyle, work, family, and perhaps whether it’s really necessary to be ‘crazy busy.’

“Also, she reveals that, for the most part, highly successful people understand that perfectionism is not healthy and ultimately gets in the way of progress.”

Also never mind that overworked unhappiness abounds on both ends of the legal profession’s financial food chain. In this New Yorker op-ed piece a few weeks back, Columbia Law professor Tim Wu fingered the tyranny of technology as the culprit, citing the long hours of litigation as an example.

“Consider the litigation system, in which the hours worked by lawyers at large law firms are a common complaint. If dispute resolution is the social function of the law, what we have is far from the most efficient way to reach fair or reasonable resolutions. Instead, modern litigation can be understood as a massive, socially unnecessary arms race.

“In older times, the limits of technology and a kind of professionalism created a natural limit to such arms races, but today neither side can stand down, lest it put itself at a competitive disadvantage.

“A typical analysis blames greedy partners for crazy hours, but the irony is that the people at the top are often as unhappy and overworked as those at the bottom: it is a system that serves almost no one. Moreover, our many improvements in the technologies of productivity make the arms-race problem worse. The fact that employees are now always reachable eliminates what was once a natural barrier of sorts, the idea that work was something that happened during office hours or at the physical office. With no limits, work becomes like a football game where the whistle is never blown.”

We may not like what we’re doing — see, e.g., this Above the Law blog post re:  Prof. Wu’s article — but we do it anyway. Why?

Barry Goldman, arbitrator, mediator, and author of The Science of Settlement: Ideas for Negotiators, cites a psychological trait cognitive scientists call “sphexishness” to explain our stubbornness. You can read about it in this LA Times op-ed piece.

Sphexishness? Maybe. Or maybe unhappiness and a show me the money mentality are embedded in the larger context of American workplace culture. The following is from a Pyschology Today article called “Counterproductive Productivity,” by marketing professor Raj Raghuna:

“I don’t know about you, but it seems that the average American doesn’t really enjoy work. If the reason we work harder is because we enjoy our work, then most of us would be happy to go back to work, and we would have restaurants that are called TGIM (Thank Goodness It’s Monday) and not TGIF (Thank Goodness It’s Friday).

“No, we don’t work harder because we enjoy our work. Rather, we work harder so that we can earn more money, and so that we can feel, at some level, more important and more successful… And once we get on that gravy train, it’s difficult to get off it.”

Whatever the cause, we seem to have a problem here, Houston, and next time we’ll look at yet another reason why we avoid addressing it.

The Future of Law (Part 5): The Democratization of the Law (Cont’d.)

 Follow this link for a collection of my past three years of blog posts. It’s a FREE download!

We’ve looked at the ethos of the legal profession before. Here’s that definition again:

Ethos:  the characteristic spirit of a culture, era, or community
as manifested in its beliefs and aspirations.

Democratization has its own ethos. Its characteristic spirit is a popularized impatience, a marketplace riot in which “power to the people” pushes aside the traditional gatekeepers (lawyers) of specialized knowledge (the law). We looked last time at some of the beliefs and aspirations undergirding the democratization of knowledge, and the kinds of philosophical debate they generate.

It’s one thing when lawyers take the law in directions we didn’t anticipate (like what happened when RICO and HIPAA drifted from their originally intended moorings); it’s quite another when consumers and non-lawyers do that. (HIPAA’s original intent:  “to make it easier for people to keep health insurance, protect the confidentiality and security of healthcare information and help the healthcare industry control administrative costs.”  RICO’s intent:  to provide for criminal and civil redress “for acts performed as part of an ongoing criminal organization.”)

The law might have seen it coming. Democratization often creates high leverage events that seem sudden — e.g. the Arab Spring — but there’s usually a backstory of chronic popular discontent stonewalled by those in power, until one day enough is enough and the trend busts through.

In the case of law, a significant component of the backstory was chronic consumer dissatisfaction. For example, clients have been unhappy with hourly billing (and other fee practices) for a long time. (Billable hours are no picnic for lawyers, either.) Or consider the well-documented client dissatisfaction with the litigation process:  e.g., this 2002 article about “just how pernicious litigation is for the average non-repeat player,” or this 2008 article about the problems judges face when litigants represent themselves. The latter notes that “These trends present real and significant challenges to a legal system designed for representation by trained advocates.” That pretty well sums up democratization’s impact on the law.

This week’s prediction:  the legal democratization megatrend will spawn several powerful derivative trends that will erode the ethos of the law and the legal profession, in favor of a push to outcomes unencumbered by traditional legal process.  For example, we can expect:

  • A break from sole and perhaps even primary reliance on the sacrosanct cornerstone of precedential appellate authority in legal decision-making.
  • Non-traditional practitioners executing commercial transactions without what we would consider adequate contractual consideration, and resolving disputes without regard to historical evidentiary strictures (who cares about — or for that matter understands — hearsay anyway?).
  • Along the way, we’ll witness the continued diminution of the economic value of the knowledge base and skillset traditionally learned in law school and developed in the early years of law practice.

There will be other derivative trends as well; each will have gentler and more extreme versions. We’ll look at some of those in coming posts. Meanwhile, the debate about who can practice law better — the experts, or the empowered people — will rage on, mostly in vain. Democratization is a juggernaut that already can’t be stopped, and — in the law anyway — it doesn’t even have a full head of steam yet.