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Understanding the Legal System

Adversary System, The

The adversary system was supposed to make everyone work hard to present his side of the question (as contrasted with some other legal systems, where the judge asks the questions, decides, and that's it). In the adversary system the opposing lawyers would each present their version of reality, and out of this porridge of truth and lies would come truth.

It didn't work all that well. Instead of achieving consistent truth, the adversary system has achieved irregular truth, and corrupted society's values in the process. Today the adversary system operates under one of the strangest theories in the known universe:

"If they're losing, we must be winning."

If you want to hear a sane voice, you may have to talk to yourself.

(The adversary mentality, in which lawyers play "advocate," makes it almost impossible to focus lawyers' minds on cooperative enterprises. They can't really grasp that sometimes the pie is so large it doesn't matter how accurately you slice it; everybody gets a good slice. A lawyer will be incredibly reluctant to work for the deal; he'll want to work for you, and keep hacking at the pie until it's ruined for everyone.)


Is out there, waiting to torment you. To do business with a lawyer is to deal with law. Law is a government monopoly. To deal with the government is to be inconvenienced, at best. A good lawyer can reduce but not eliminate this.

Try to discriminate between the nuisances generated by the lawyer, and those generated by the legal system. Many legal procedures have delays built in by law. The bureaucracies surrounding the courts can take additional weeks or months to do their job, and the courts can take years just to reach trial.

Most of the bureaucratic delays and aggravations will be laid out at the beginning, when you are sitting in the lawyer's office asking "Right. Then what's the next step? OK, when does that happen?" (See PROJECT MANAGEMENT on timelines, p.tk.)

Delays that pop up later should make you wonder. Bureaucracies are glacial, but their level of sloth is usually predictable. Courts can be more capricious; a trial date may indeed be shifted with hardly any warning.

In either case, you can try to match the lawyer's explanation to your timeline, and see if it's plausible – or head on down to the courthouse to see what papers have been filed, and what the judges and court clerks have been up to.

Documents and Evidence

Lawyers usually want all the pertinent paperwork. Reasonable enough, but you might fire the lawyer – and your papers may become hostages.

Unless necessary, always give your lawyer copies instead of originals. Get copies of everything the lawyer produces. Have him mail you copies automatically. There is no need to be aggressive – lawyers are used to sending copies. They think it keeps the customers happy. (It often does.)

Jargon and Key Phrases


Professional courtesy means obliging another lawyer, e.g. agreeing to postpone a court date because the opposition lawyer had something urgent come up; or isn't prepared; or has to do lunch that day. Every trade has give and take; it greases the wheels, and sometimes both business owner and customer come out ahead. Lawyers take it too far. It's usually not damaging. On the other hand, the lawyer rarely tells the customer what he's done. Then it is dishonest.

To analyze – to read and dissecalt; also to get a quick education at the customer's expense.

To review – to read and generally consider; also to get a quick education at the customer's expense.

Research – can be an expensive word. You need to know how much research. You need to wonder if anyone else in town already has the answer in his head.

A case – a court case, to most lawyers, or something heading in that direction. If you weren't expecting to go to court, this word should get your attention; you need to know what the lawyer is thinking.

Expanding the work – over-lawyering; running the meter.

Client management – controlling the client, or his bank account.

Frequent flyer miles – gifts from court reporters to law firms, based on how many hours of deposition work the court reporter was given.

Ethics – refers to professional ethics, not ethics as we understand it. The main thrust of a lawyer's professional ethics is protecting fellow lawyers, not his customers.

Integrity – usually means "professional ethics."


"... tailor it to your situation ..."
  • We've never done this before, but we're willing to learn, at full hourly rates.
  • We want to charge you a custom price for a semi-custom job.
"Let's lay it all out on the table." This can mean "What's the scoop?" or "Let's have the facts" – but it can sometimes lead into "... tailor it to your situation."

"There's a right way to do things."
Forget the quick solution, I want you to run the whole obstacle course. This is an expensive notion; people seeking perfection should become writers, so their compulsions won't bother anyone else. Happily, lawyers tend to use it during the first office interview, and you can hire someone less persnickety.

"These things take time."

  • I don't know when it will get done.
  • This cow is going to get milked till it's dry.
  • Better jobs may come along and I'll have to put yours on the back burner.
  • The bureaucracy is going to slow us down.
The immediate response to this phrase is "About how much time?"

"That's a gray area."
If the lawyer continues "... but the way things have been recently, your odds of coming out OK are__%," then it means exactly what he said. If he just stops, it means:

  • I don't know.
  • No one knows; there's no clear law on that, and there haven't been enough cases to tell which way a court would swing.
  • I know but I'm too cautious to quote the odds (and get sued for malpractice) unless the customer seems realistic and insistent.
  • I know but I want to do some research.
Customers have been known to ask: "Does that mean my guess is as good as yours?" But don't dump a lawyer just for this phrase; ninety percent of them use it.

"... an excess of zeal." Lawyer-to-lawyer insult.

  • You're rocking the boat.
  • You're no gentleman.

"... acting in bad faith." A deadly lawyer-to-lawyer insult (bordering on the unforgivable "You're unethical.") It can mean:

  • You're rocking the boat.
  • You're no gentleman.
  • You're a liar.

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