
We Are All Lawyers Now – The Rise of the Legalish - artificiallawya
https://www.artificiallawyer.com/2018/10/23/we-are-all-lawyers-now-the-rise-of-the-legalish/
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OliverJones
My spouse is a human lawyer. She's working now for a software company; she did
her part taking it public a few years ago. She knows our trade pretty well.

The difference between a lawyer on the one hand, and a "jailhouse lawyer" (an
engineer who does legalish work) on the other, are these:

The lawyer knows how to get things done to support the business. It's rare for
a real in-house lawyer to tell the business, "we can't do that." More often,
it's "here's how we do that."

The lawyer knows how to write a form contract (sales, lease, nondisclosure,
etc) so other lawyers will read it and say "ok, that's fair" and sign it.

The lawyer knows how to read an incoming form contract to see if it's fair.

The lawyer has real relationships with her counterparts at customer and vendor
companies. When a vendor tries to change terms, she calls her counterpart and
asks, "what's this about? My business has problems with this. How can we get
to yes?"

The lawyer knows that if a dispute gets to a judge, the remedy will be money.
With very few exceptions there's no way for a judge to repair a business deal
that's gone sideways. So the lawyer says, "anything but court."

At some level, the law is like computer code. But the computer code has been
around for many centuries and it has been patched over and over and over again
as needed to solve real-world problems: in the US and English system that's
called "case law.". There's an adage that "hard cases make bad case law."
Lawyers know the ins and outs of this stuff.

In my experience as an entrepreneur, when I've played lawyer I've generally
overdone things to my detriment.

The US is definitely litigation-happy. That makes things tough.

~~~
smacktoward
I feel like the rise of the "legalish"/"jailhouse lawyer" type person is just
a facet of a broader societal trend towards the rejection of expertise.

Experts are gatekeepers, and the whole thrust of the culture over the last few
decades has been towards the removal of gatekeepers, towards the
"democratization" of everything. Who needs journalism when you have blogs and
social media? Who needs doctors when you have WebMD and Goop? Who needs
lawyers when you have LegalZoom and YouTube?

The problem, of course, being that experts are called experts because _they
know stuff that you don 't_, and as we drive all the experts out of the public
square the vacuum left behind as their knowledge departs is being filled by
dangerous nonsense. "Democratization" is not proving to be a very good
advertisement for democracy.

The less fashionable expertise becomes, the more I find I appreciate it.

~~~
Nasrudith
Lawyers are also infamously expensive in billable hours. Not to mention scope
creep of law both with contract proliferation and law sizes with no condensing
efforts or even garbage collection of long unenforced, obviously superceded by
higher courts, or so removed from societal context to be nonsensical laws.

If it is omnipresent enough and too expensive to defer everyone had to
practice some law then.

~~~
pnw_hazor
Are lawyers that expensive?

People will not even pay a $1500 for an independent review of a $1million home
purchase. Most just blindly follow their real estate agent's advice even
though such agents are usually hopelessly conflicted because of their own
financial interest in getting the deal done.

~~~
kirkules
That's not a completely fair example, though, for a number of reasons.

If you think there's an honest chance that a $1500 independent review could
turn up something that would make you turn down the deal and try to find
another, do you then expect to have another $1500 review done? What
expectation should you, a non-expert in doing this kind of calculation, have
about the total cost of having independent reviews done?

Also, $1500/$1million sounds tiny, but nobody who thinks they can't afford a
$1500 review buys a $1million house in cash; they get a mortgage and expect to
pay $4.5k/month, and people in general don't save (or have the ability to
save) as much as I do/would. So it's $1500/$4500 in the immediate future of
having to make your first payment, on top of closing costs, etc., for benefit
that is already unclear to a non-expert.

And by definition we're talking about a non-expert, because that's why they
would have the need to hire a lawyer to do an independent review.

Anyway, it's not that I necessarily think lawyers are that expensive across
the board, but the existence of that perception shouldn't be very confusing. A
non-expert doesn't have the tools to accurately put a value on expert
services.

~~~
kazinator
Another scenario: say you have this $1500 review and it uncovers issues. You
want the house anyway and try to negotiate the price down. Oops, the house
goes to the next bidder who didn't bother with such a review. Basically, all
you can do with the review is to "know what you're getting into".

~~~
bradknowles
Depending on the jurisdiction, anything discovered in a detailed inspection of
this sort will have to be disclosed to any future buyers.

So, in that case, it would be to the best interest of the seller to reduce
their asking price and/or fix the major problems that were found, so that they
no longer have to carry this legal burden going forward.

Yes, this happened to me and my wife (she's the lawyer in the family), and
this resulted in us getting over $12,000 cut off the purchase price of our
house, in addition to getting a number of major problems fixed before the deal
actually went through.

IANAL myself, and I can't make any claims that anyone else will necessarily
benefit in the same way, but that detailed inspection of the house-to-be-
bought can be worth 10x the cost you pay for it -- or more.

------
zawerf
Legal compliance is probably the worst part of building a side project.

For example for basic levels of protection, you at least want a terms of
service and privacy policy on your site.

You'd think it's just copying and pasting some boilerplate. But say you want
to allow user uploads, then you also need to not get screwed if someone
uploads a picture owned by some copyright troll. So then you have to figure
out how to get DMCA safe harbor status so you're not responsible for user
content. And that requires: registering at a copyright office, monitoring
email for timely takedowns, and communicating counter notices, etc. All of
this work and we haven't gotten to GDPR compliance yet!

At one point you just go fuck it, it's a side project. Just wrap it in a LLC
so it can't bankrupt you even if you do get sued. But now you have to deal
with company formation laws which is yet another can of worms.

~~~
skummetmaelk
This is a consequence of enforcing the letter of the law rather than the
spirit of the law. Bad actors keep finding loopholes to exploit and
politicians fix them with patchwork resulting in overly complex monstrosities
of legalese with a million little exceptions. Of course this just adds to the
loophole problem.

The only way to reliably fix this is to institute some form of judgment of
whether or not an actor was following the spirit of the law. If they weren't
they should have any advantages gained by skirting the law removed by force.

Of course this leads to a different set of problems with the potential for
overreaching state actors. One way to combat this could be making the judicial
branch much more independent than it usually is in most countries.

~~~
sandworm101
"Spirit of the law" is a myth. It is something invented by non-lawyers when
they want to gloss over something, normally when they dislike how a law is
written. Calling for people to comply with "spirit" is simply a call for some
arbitor to enforce thier interpretation, thier opinion on spirit. We have
judges for that already. Spirit is a dogwhistle for non-lawyers to be involved
... but we have that too. Non-lawyers, elected officials, write and pass the
laws. Blame them.

~~~
Bjartr
IIRC, in Europe it's harder for companies to exploit letter-of-the-law
loopholes than in the US. So I think you do have a point, but there's more
nuance in practice.

~~~
sandworm101
The US obsession with loopholes and "letter of the law" is a historical
religious thing. US is protestant, where the language of the bible is made
availible to all. Everyone is free to read and invent an interpretation, to
find thier own loopholes. Europe follows a more catholic tradition, where
biblical language is interpreted through priests. Hence, european judges
(legal priests) are given more authority to interpret language and smooth out
rough edges. It is centuries-old culture.

~~~
ben_w
The distinction I’ve heard is called Roman law (continental) versus common law
(UK, its colonies and empire).

~~~
sandworm101
Exactly, the UK being home of one of the largest protestant traditions (COE).
The specifics of biblical language and translation is a cornerstone of English
political and legal history (see Henry VIII and associated fiascos).

But when people speak of European colonial law v common law, they are normally
talking about French v. British. The Napoleonic tradition followed in former
french colonies is very different than the British common law. And there are
places (Louisiana and Quebec) where these two legal traditions were forced to
merge. When comparing the two we still see the catholic v protestant split,
which is expected given the history. The french relationship with language,
that there is a government agency to define words, also leans towards a more
authoritarian view of legal interpretation. America today doesn't even have an
official national language.

------
batty_alex

        Nevertheless, the crossover between the needs of legalish and what we perceive as the legal field is remarkable.
    

As someone who spent five years as a software developer in the legal industry,
this whole article comes off as a lot of fluff to sell a product. I'm not even
really sure what it's suggesting aside from using them instead of lawyers,
because the legal system is too conservative for automation... or something
(not true).

------
dkarl
We are all lawyers now? People have always dealt with the law. They get into
disputes over wages, buy and sell property, get married, get divorced.
Shakespeare included lawyer jokes in his plays. The self-service legal
industry predates the internet; I remember the packets you could buy at the
bookstore for do-it-yourself wills and divorces.

I know, I know, it's marketing fluff so I'm supposed to give bullshit a pass,
but why are we upvoting marketing fluff on HN?

------
lixtra
> ‘Aren’t we all in the legal field to some extent?’

I heard a CCO complaining that non-legal people should not have access to any
contracts. Her claim was that they would read those contracts and think they
understand them, while in fact they won't. She considered this a too great
risk because only legal people could truly understand them.

She'll love this piece.

~~~
scrollaway
The more I talk to lawyers, the more I'm convinced that a fair majority of
lawyers are, consciously or not, extremely defensive about their job security.

Think about this: If I give you the simplest piece of advice in legal matters,
I'm _heavily_ encouraged to declare I'm not a lawyer and that you should
contact one.

This is the only profession where I see this be _so reliably_ the case. In
other risk-averse professions (tax compliance, health) there is always the
obvious "You should talk to a professional" but even in _health_ it's not as
heavy-handed. I've never seen a doctor say "I'm a doctor but this is not
medical advice" when giving basic information.

And I understand the superficial reasons why this is done, but there's just as
many reasons not to get your buddy-mechanic to fix your car without them
making you sign waivers.

This matters because the people who most need legal advice are those who can't
afford lawyers. Makes me very uneasy.

Also to your CCO, I would say that if we were limited to what we would
understand day-to-day, there would be no more learning. This is one of the
core pillars of free software after all.

~~~
rayiner
> I've never seen a doctor say "I'm a doctor but this is not medical advice"
> when giving basic information.

Lawyers do that because enforceable lawyer-client relationships can be created
based just on a conversation, and whether there is one or not turns on whether
_the non-lawyer_ thought there was one. The creation of a lawyer-client
relationship, in turn, has knock-on effects. A lawyer can be sued for
malpractice based on that verbal advice, can be disqualified from taking a
case adverse to the “client,” etc. Also, state bars are extremely humorless
about unlicensed out-of-state practice. Just the appearance of giving legal
advice in a state where you aren’t licensed can get you in trouble.

~~~
vonmoltke
Why can that create an enforceable attorney-client relationship for a lawyer,
but equivalent medical advice cannot create an enforceable doctor-patient
relationship?

~~~
rayiner
Lawyer-client relationships often involve just the giving of advice. It would
be odd for a doctor-client relationship to not include examination and
treatment.

~~~
pmiller2
This is a totally valid point, but it does make me wonder: why don’t
psychotherapists behave in a similar manner to lawyers with this type of
disclaimer? Maybe because it’s not a therapy session unless you sit down for
an hour in a private office?

~~~
131012
People get self-aware of the dangers related to their profession. We get
pretty crazy about data leak, when nobody else really cares. I'm pretty sure
the psychotherapist you just talked to at a dinner party has one or two
diagnostics on your mental health and has an opinion on your relation with
your parents, and lawyers always think about what can get you sued. So they
get really careful when there's a legal risk for them.

------
zekevermillion
Law firms are famously late, but enthusiastic adopters of technology. Usually
after all their clients are using it. For example the old blackberry -- law
firms in New York were about a year behind, but once they tried it, they fell
in love with handheld email. I don't think "smartphone" penetration was higher
in any demographic circa 2005 than the ranks of Wall St lawyers.

There are a few contemporary services like Workshare that have made inroads in
the arena that Autto is entering. Contract workflow is a pretty tough nut to
crack. I think the mistake a lot of non-lawyers make when selling to law
firms, is they assume that most contract flow can/should be entirely
automated. But complex legal drafting is still an exercise that demands a lot
of wet brain matter.

------
rv-de
I never founded a company or started a business. I've been thinking about that
a lot though and am doing so in intervals. Now my personality leads me to
always think through everything very carefully to avoid making mistakes - I'm
regularly overthinking and often getting trapped in paralysis by analysis.
This especially is true in the context of business with regard to laws and
taxes.

Having worked in more than a handful of companies full-time by now I made an
interesting observation I intend to learn from and have it inspire future
decision making.

Most founders - especially in the earlier stages - don't worry very much about
the intricacies of laws and regulation. I can safely say that most companies I
worked at entered deeply into gray areas like sailing with a dinghy on high
sea and enjoying the great weather. Every experienced captain would argue that
is pretty darn dangerous. But the consequence of that would be staying home -
meaning "no business".

So my conclusion is that successful entrepreneurs are the kind of people who
take risks while being aware, half-aware or totally unaware - because
successful entrepreneurs simply don't worry much in general. Sociologically
those men and women usually have a somewhat wealthy background having kept
them from worrying throughout their youth and hence their brain circuits
dealing with worrying are somewhat underdeveloped - I suppose. Some get their
finger's burnt and some don't.

~~~
gamblor956
Most of the successful entrepreneurs I know that run real businesses--not the
"startups" that have been all the rage the past few years, but real, money-
making, profit-earning businesses--address the legal and regulatory stuff
_from the beginning._ It's part of their business plan and business model from
the beginning.

This is true of the one-man contractors to multi-billion dollar corporations.
Real entrepreneurs don't wing it. And for the ones that don't worry about the
compliance stuff, it's because they're paying a ton of money to specialists
like me to do the worrying for them.

~~~
rv-de
Well, if it needs a ton of money to have you worry professionally then your
sampling is biased towards large companies. The businesses I am referring to
were all profit-earning.

------
pnw_hazor
Law is a bit like physics. It does its thing whether you understand it or not.

So most times folks can navigate through life w/o understanding much law, just
like non-techies can use telephones w/o understanding how electricity or
radios works.

As with most things, its the edge cases that get you in trouble. And, it
usually takes more legal expertise than most non-lawyers have to recognize
potential legal edge cases.

------
hanswesterbeek
Clearly nobody lives in a legal vacuum. Those days have been gone for a couple
of millennia.

~~~
barrow-rider
By the articles logic, anyone with a budget must be accountant-ish, and anyone
with a retirement plan or investments is financial planner-ish.

------
amelius
I wish lawyers used a more formal language, that computers can interpret.
Perhaps we're heading in that direction with blockchain contracts, etc. Better
sooner than later, imho.

